Crane v. Raber's Discount Tire Rack ( 2020 )

The Supreme Court of South Carolina
Danny B. Crane, Petitioner,
v.
Raber's Discount Tire Rack, Employer, and South
Carolina Uninsured Employers Fund, Carrier,
Respondents.
Appellate Case No. 2018-000959
ORDER
The petition for rehearing is denied. The attached opinion is substituted for the
previous opinion, which is withdrawn.
s/ Donald W. Beatty C.J.
s/ John W. Kittredge J.
s/ Kaye G. Hearn J.
s/ John Cannon Few J.
s/ George C. James, Jr. J.
Columbia, South Carolina
April 29, 2020
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Danny B. Crane, Petitioner,
v.
Raber's Discount Tire Rack, Employer, and South
Carolina Uninsured Employers' Fund, Respondents.
Appellate Case No. 2018-000959
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from the Workers' Compensation Commission
Opinion No. 27951
Heard October 16, 2019 – Filed March 11, 2020
Re-Filed April 29, 2020
REVERSED AND REMANDED
Stephen Benjamin Samuels, Samuels Law Firm, LLC, of
Columbia, for Petitioner.
Matthew Joseph Story, Daniel Paul Ranaldo, and Lisa C.
Glover, Clawson & Staubes, LLC, of Charleston, for
Respondent South Carolina Uninsured Employers' Fund.
JUSTICE FEW: Danny Crane sought workers' compensation benefits for hearing
loss and brain injuries he alleged he suffered in a work-related accident. The
workers' compensation commission denied most of Crane's claims, finding he was
not entitled to benefits for temporary total disability, permanent impairment, or
future medical care. The primary basis for denying these three claims was the
commissioner who initially heard the case found Crane was not credible. The court
of appeals reversed the commission's denial of temporary total disability benefits,
but otherwise affirmed. We now reverse the commission's denial of permanent
impairment and future medical care benefits. We remand to the commission for a
new hearing on all three claims.
Our courts have frequently held that when the commission makes a credibility
determination based on substantial evidence, the credibility finding itself is
substantial evidence, and factual findings properly based on the credibility finding
are binding on the courts. See, e.g., Lee v. Bondex, Inc., 406 S.C. 97, 101, 749 S.E.2d
155, 157 (Ct. App. 2013) (holding the commission's finding that "four doctors'
opinions were 'more persuasive on the issue of causation' than other medical
evidence" was a "credibility determination" that "if supported by substantial
evidence, is binding on the court," and affirming the commission's factual finding of
compensability based on that credibility determination (citing S.C. Code Ann. § 1-
23-380(5) (Supp. 2019))). The commission may not, however, give artificial
importance to a credibility determination when credibility is not a reasonable and
meaningful basis on which to decide a question of fact. In this case, Crane's lack of
credibility was not a reasonable and meaningful basis on which to ignore objective
medical evidence. Therefore, the commissioner and the appellate panel improperly
based the factual determination to deny Crane's claims on the commissioner's
credibility finding.
I. Facts and Medical History
On February 19, 2014, Danny Crane was working as a mechanic at Raber's Discount
Tire Rack in Barnwell, South Carolina. Crane heard a hissing noise coming from an
air-powered tire changer. He and a coworker were investigating the cause of the
noise when an air hose attached to the tire changer suddenly separated from its
fitting, causing an explosion-like sound. Surveillance video shows Crane stepped
away from the tire changer and covered his ears with his hands. Crane testified that
immediately after the incident, his ears were ringing, he was in pain, and he could
not hear. He texted his wife and asked her to pick him up to take him to the
emergency room.
Crane's wife drove him to Barnwell County Hospital, where Crane complained of
difficulty hearing in both ears and assessed his ear pain as an 8 out of 10. The
emergency room doctor diagnosed Crane with conductive hearing loss and referred
him to an ear, nose, and throat specialist.
The next morning, Crane saw Dr. John Ansley, an otolaryngologist at Carolina Ear
Nose and Throat Clinic in Orangeburg. In his physical examination, Dr. Ansley
observed both of Crane's eardrums had "perforations." Dr. Ansley conducted a
hearing test, and the resulting audiogram1 showed Crane had severe sensorineural
hearing loss in both ears. Dr. Ansley wrote in his report, "Hopefully his thresholds
will improve." At a follow-up appointment on March 6, however, Dr. Ansley
conducted another hearing test that indicated Crane "actually had a shift downward"
in his hearing. The March 6 test showed "profound hearing acuity loss in both ears."
Because Crane's hearing loss had not improved, Dr. Ansley referred Crane to the
Medical University of South Carolina for an auditory brainstem response test.
However, Crane's medical insurance did not cover the test, the Uninsured
Employers' Fund denied the entire claim and thus refused to pay for it,2 and the
commission did not require it. To this date, Crane has not received the test.
On May 19, 2014, Dr. David Rogers—a medical expert Crane retained—examined
him. Dr. Rogers found both of Crane's eardrums were ruptured. He described a
60% tear in the right eardrum and an 80% tear in the left. Dr. Rogers diagnosed
Crane with permanent and profound bilateral sensorineural hearing loss and
concluded his hearing could not be restored by natural means.
Crane saw other doctors after his accident for problems such as dizziness, headaches,
a fall resulting in a broken rib, and continuing pain from the broken rib. On February
25, 2014, Crane had a CT scan that showed normal results. After the initial hearing
but before the commissioner issued a written order, the commissioner permitted
1
An audiogram is, "The graphic record drawn from the results of hearing tests with
an audiometer, which charts the threshold of hearing at various frequencies against
sound intensity in decibels." Audiogram, STEDMAN'S MEDICAL DICTIONARY (28th
ed. 2006).
2
Raber's was not insured, and for that reason the Uninsured Employers' Fund is
responsible for Crane's claim. See S.C. Code Ann. § 42-1-415(A) (2015) ("The
Uninsured Employers' Fund shall assume responsibility for claims within thirty days
of a determination of responsibility made by the commission.").
Crane to supplement the record with the results of a third hearing test, conducted
August 19, 2014, at Carolina Ear Nose and Throat. The audiogram from that test
showed Crane suffers from "profound hearing loss" in the right ear and "profound
to severe hearing loss" in the left ear. The otolaryngologist who saw him that day
noted Crane "reads lips," and wrote, "He should be considered disabled because of
this."
II. Proceedings at the Commission
Crane filed a Form 50 alleging "head injury and hearing loss" from being hit in the
head by an object and from the explosion-like sound. In his pre-hearing brief, Crane
alleged he "suffered head/brain injuries, severe hearing loss, and psychological
overlay." As to the alleged brain injury, Crane argued he was not at maximum
medical improvement, and thus "a determination of physical brain damage is
premature and not before the Commission at this hearing." The employer and the
Uninsured Employers' Fund each filed a separate Form 51 denying all claims.
Commissioner Susan Barden promptly held the initial hearing on June 26, 2014. The
medical evidence described above was included in the record, and Crane was the
only witness. In her April 30, 2015 order, the commissioner focused almost
exclusively on Crane's credibility. She wrote, "Claimant's conduct/presentation at
the hearing (including prior to opening the record) was more revealing than the
substance of his actual testimony." She added, "Claimant's 'display' and evasiveness
at the hearing . . . make me seriously question whether or not there was an actual
injury" and "if Claimant had legitimate, causally-related hearing loss he would have
felt no need to 'perform' at the hearing." She stated Crane's ability to hear or not hear
questions was "selective" and "had no modicum of consistency." She again referred
to Crane's testimony as an "inconsistent performance," and stated his acting was
"very poor." She mentioned "other problematic issues," which she did not name.
However, referring to the surveillance video of the incident as though this evidence
obligated her to find some injury, the commissioner found Crane did "sustain[] an
injury to his ears."
Based primarily on the finding Crane's testimony was not credible, the commissioner
denied Crane's claims for temporary total disability, permanent impairment, and
future medical care. The appellate panel affirmed. The court of appeals affirmed
the appellate panel as to permanent impairment and future medical care, but reversed
as to temporary total disability. Crane v. Raber's Discount Tire Rack, Op. No. 2018-
UP-085 (S.C. Ct. App. filed Feb. 14, 2018). We granted Crane's petition for a writ
of certiorari.
III. Analysis
Our review of the decisions of the workers' compensation commission is governed
by the Administrative Procedures Act. Hutson v. S.C. State Ports Auth., 399 S.C.
381, 387, 732 S.E.2d 500, 502 (2012); Lark v. Bi-Lo, Inc., 276 S.C. 130, 134, 276
S.E.2d 304, 306 (1981). The Act provides, "The court may not substitute its
judgment for the judgment of the agency as to the weight of the evidence on
questions of fact." S.C. Code Ann. § 1-23-380(5) (Supp. 2019). As to questions of
fact, "The court may reverse or modify the decision if substantial rights of the
appellant have been prejudiced because the . . . findings . . . are . . . (e) clearly
erroneous in view of the reliable, probative, and substantial evidence on the whole
record." Id. When the commission makes a finding of fact that is properly supported
by substantial evidence, the courts must uphold it. Pierre v. Seaside Farms, Inc.,
386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010).
The commission often makes findings of fact based on credibility determinations.
In numerous cases, our courts have upheld factual findings the commission made
based on its credibility determination. See, e.g., Langdale v. Carpets, 395 S.C. 194,
203, 717 S.E.2d 80, 84-85 (Ct. App. 2011) (upholding the determination that
insurance coverage exists based on the commissioner's decision to believe one
witness over another, "which we defer to on appeal"); Fishburne v. ATI Sys. Int'l,
384 S.C. 76, 90, 681 S.E.2d 595, 602 (Ct. App. 2009) (upholding the commission's
findings regarding the extent of injury because the commission determined the
claimant "was not credible"); McGriff v. Worsley Cos., Inc., 376 S.C. 103, 113-14,
654 S.E.2d 856, 861-62 (Ct. App. 2007) (upholding the finding that an injury was
compensable based in part on the commission's credibility determination).
The reason we consistently affirm these findings derives from a principle that applies
beyond credibility to all factual determinations of the commission: "an award must
be founded on evidence of sufficient substance to afford a reasonable basis for it."
Hutson, 399 S.C. at 387, 732 S.E.2d at 503 (quoting Wynn v. Peoples Nat. Gas Co.
of S.C., 238 S.C. 1, 12, 118 S.E.2d 812, 818 (1961)). When the commission's factual
determination is "founded on evidence of sufficient substance," and the evidence
"afford[s] a reasonable basis" for the commission's decision in the case, the evidence
meets the "substantial evidence" standard and we are bound by the decision. This
point is illustrated in the hundreds of cases in which our appellate courts have
affirmed factual determinations by the commission.
The counterpoint is illustrated by Hutson, in which we reversed a factual
determination by the commission. In Hutson, the claimant sustained an injury that
prevented him from "continuing in his life's occupation as a crane operator." 399
S.C. at 387, 732 S.E.2d at 503. He sought to prove disability through wage loss
under section 42-9-20 of the South Carolina Code (2015). 399 S.C. at 385, 732
S.E.2d at 502. Thus, we stated, "The sole question before us . . . [was] whether his
injury will also prevent him from earning the same wages in another job." 399 S.C.
at 387-88, 732 S.E.2d at 503.
The commission found the claimant failed to prove he suffered a wage loss that
qualified him for disability under section 42-9-20. 399 S.C. at 385, 732 S.E.2d at
502. The evidentiary basis for this factual determination was the claimant's
testimony he believed he could make money running a restaurant. 399 S.C. at 385,
388, 732 S.E.2d at 501-02, 503. The commissioner who conducted the initial
hearing "concluded that because Hutson could not testify as to how much he would
make as a restaurateur, there was no way to determine if he would suffer any loss of
earning capacity." 399 S.C. at 385, 732 S.E.2d at 502. The commissioner
specifically stated that but for this testimony by the claimant, he would have found
the claimant disabled. Id. The court of appeals in Hutson affirmed, ruling substantial
evidence supported the commission's factual finding that the claimant failed to prove
his wage-loss claim. Hutson v. State Ports Auth., 390 S.C. 108, 114, 700 S.E.2d
462, 466 (Ct. App. 2010).
This Court reversed. 399 S.C. at 390, 732 S.E.2d at 504. The Court explained two
reasons the claimant's testimony did not qualify as "substantial evidence" under the
Administrative Procedures Act. First, we stated "despite [the claimant]'s confidence
in his own abilities, the record is clear that [he] had no experience running a
restaurant or an understanding of what doing so entails." 399 S.C. at 388, 732 S.E.2d
at 503. We found it "is abundantly clear from [the claimant]'s testimony . . . that he
never worked in a restaurant in his life, much less operated one, and he clearly had
no idea what income he might realize from such a venture." 399 S.C. at 390, 732
S.E.2d at 504. We criticized the commission's "use [of the claimant's] unsupported
and wildly optimistic goals" as evidence to support the denial of his wage loss claim.
399 S.C. at 388, 732 S.E.2d at 503.
Second, we considered the context of the testimony. We explained the testimony
was not offered to prove he could make the same money running a restaurant that he
made operating a crane, which was "approximately $90,000 per year." 399 S.C. at
385, 732 S.E.2d at 501. Rather, "the sole purpose for [the claimant's] testimony was
to support [his] request that his award be paid to him in a lump sum." 399 S.C. at
388, 732 S.E.2d at 503. The claimant "desire[d] to continue to have a productive
work life," and he made a "commendable" request that the commission give him the
best chance to do so by awarding benefits in a lump sum. 399 S.C. at 390, 732
S.E.2d at 504. "In sum," we held, "the full commission's conclusion is based on rank
speculation and cannot now be used as the basis for denying [the] claim for lost
wages." 399 S.C. at 389-90, 732 S.E.2d at 504. Under Hutson, when the
commission's factual finding is not "founded on evidence of sufficient substance to
afford a reasonable basis" for the finding, we will not uphold it.
In cases in which we affirmed factual findings of the commission based on its
credibility determination, we did so because it made sense for the commission to use
credibility as the dispositive factor in deciding the particular issue. In Langdale, for
example, the resolution of the insurance coverage question before the commission
depended on whether the manager of an employment management agency's client
told the agency that a particular employee was to be covered for workers'
compensation. 395 S.C. at 202, 717 S.E.2d at 84. The evidence on the point was
disputed, 395 S.C. at 203, 717 S.E.2d at 84-85, but the commission's determination
to believe the manager's testimony logically resolved the factual dispute. Thus, the
commission's credibility determination was a reasonable and meaningful basis for
its decision.
Lee v. Bondex, Inc.—referenced above—also illustrates the important role
credibility findings play when credibility reasonably and meaningfully relates to
factual disputes to be decided by the commission. In Lee, the claimant was installing
a large metal hood at his employer's plant when the hood fell on him. 406 S.C. at
99, 749 S.E.2d at 156. The claimant testified a sharp edge landed on his shoulder,
resulting in immediate pain and difficulty working. 406 S.C. at 99-100, 749 S.E.2d
at 156. The compensability of his injuries depended on "whether they were caused
by the hood falling on his shoulder." 406 S.C. at 100, 749 S.E.2d at 156. The
commissioner denied the claim, finding he did not prove he suffered a compensable
injury. Id.
The appellate panel found the injury was compensable and reversed. Id. "[T]he
appellate panel specifically relied on four doctors who examined [the claimant], each
of whom gave the opinion that the accident caused his injuries. The appellate panel
specifically found the four doctors' opinions were 'more persuasive on the issue of
causation' than other medical evidence indicating the injury was not work-related."
406 S.C. at 101, 749 S.E.2d at 156-57. The court of appeals affirmed because the
appellate panel's reliance on the credibility of the four doctors made sense. The
commission's credibility determination was a reasonable and meaningful basis on
which to decide the dispositive factual question of whether the injury was work-
related, and thus compensable. The court held, "This credibility determination by
the appellate panel," which the court found was supported by substantial evidence,
"is binding on the court." 406 S.C. at 101, 749 S.E.2d at 157.
In cases where credibility is not a substantial issue, however, even a valid credibility
finding is not a proper basis for deciding a question of fact. This case illustrates that
point. Even if Crane was untruthful in his testimony at the hearing, his claims for
future medical care, temporary total disability, and permanent impairment caused by
hearing loss are based on objective medical evidence. The opinions of his treating
physicians that he suffers from severe to profound hearing loss as a result of his
work-related accident are similarly based on objective medical evidence. There is
little in Crane's medical records—or anywhere in the record before us—that
indicates Crane's credibility reasonably and meaningfully relates to whether he
actually suffered hearing loss on February 19, 2014.
To make a proper review of a factual determination by the commission based on
credibility, the appellate court must not only understand that the commission relied
on the credibility finding; the court must also be able to understand the reasons the
evidence supports the credibility finding, and must be able to understand the reasons
credibility supports the commission's decision. In most cases, this is obvious from
context. In Langdale, for example, it required no explanation from the commission
for the reviewing court to understand that the credibility determination—the
manager did tell the agency a particular employee was to be covered—resolved the
disputed factual question of insurance coverage.
In other cases—like this one—more explanation is required. In cases like this, the
commission may not simply recite its finding that a witness is not credible, but must
explain the basis for its credibility finding.3 Then, the commission must explain how
3
To some extent, Commissioner Barden did explain the basis for her credibility
finding. Her explanation, however, reads as though she decided to find Crane not
believable and then searched for reasons to justify her preconception. For example,
the commissioner found Crane's testimony he cannot work because it is too loud to
be inconsistent with his testimony he has to turn up the radio in the car to hear it. It
is true he testified to those things, but the commissioner's conclusion he lacked
credibility does not flow from the testimony. Crane testified he has almost been run
over at work several times because he cannot hear cars and other vehicles. To hear
these vehicles and avoid being run over, he must turn up his hearing aids so loud that
the background noise gives him headaches. He also testified he must set the car
the credibility determination is important to making the particular factual finding.
See generally Pack v. State Dep't of Transp., 381 S.C. 526, 535, 673 S.E.2d 461, 466
(Ct. App. 2009) (reversing the commission because of "its failure to explain exactly
why it denied Pack's claim"). Here, neither Commissioner Barden nor the appellate
panel gave any explanation how Crane's lack of credibility can justify ignoring the
medical evidence, or how his credibility even relates to whether he suffered hearing
loss. Four physicians diagnosed Crane with severe to profound hearing loss. Those
diagnoses appear to have been based on at least two objective observations by the
physicians. First, Crane's eardrums were ruptured, with one doctor describing a 60%
tear in the right eardrum and an 80% tear in the left. Second, Crane had at least three
hearing tests that showed severe to profound hearing loss in both ears.
We can discern no basis—either from context or from the commission's orders—on
which the commission could find Crane lied to make his eardrums appear ruptured.
Similarly, neither the context of the commission's decision nor any explanation in
the commission's orders give us any meaningful basis on which to understand that
Crane's lack of credibility justifies ignoring the results of three different hearing
tests—conducted by two different ear, nose, and throat specialists—each of which
showed severe to profound hearing loss. As we required in Hutson, the
commission's factual determinations "must be founded on evidence of sufficient
substance to afford a reasonable basis for it." 399 S.C. at 387, 732 S.E.2d at 503.
IV. Conclusion
Credibility can be important in resolving factual disputes before the commission.
When credibility is a reasonable and meaningful basis on which to make a factual
determination, and when there is evidence of sufficient substance to afford a
reasonable basis for the credibility finding, we will uphold the commission's factual
determinations on the basis of credibility. However, that was not the case here. The
commission erred in denying Crane's claims for hearing loss based on credibility
without explaining any basis on which credibility could justify ignoring objective
medical evidence. We remand to a different commissioner for a new hearing. The
commissioner must reconsider the date of maximum medical improvement and
make de novo findings on Crane's claims for temporary total disability, permanent
radio volume very high or he cannot hear it. Those statements are clearly not
inconsistent with each other. They are consistent with his claim of hearing loss. The
commissioner relied on several other alleged inconsistencies that do not seem all that
significant when taken in context. Nevertheless, there is some evidence to support
the commissioner's finding Crane lacked credibility.
impairment, and future medical care based on his alleged hearing loss and
psychological overlay.
BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.