Frampton v. SCDNR ( 2020 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Chisolm Frampton, Employee, Appellant,
v.
S.C. Department of Natural Resources, Employer, and
S.C. State Accident Fund, Carrier, Respondents.
Appellate Case No. 2017-001764
Appeal From The Workers' Compensation Commission
Opinion No. 5726
Heard September 19, 2019 – Filed May 13, 2020
Withdrawn, Substituted and Refiled November 18, 2020
AFFIRMED
John C. Land, III, of Land Parker Welch, LLC, of
Manning, for Appellant.
Kirsten Leslie Barr, of Trask & Howell, LLC, of Mount
Pleasant, for Respondent.
HILL, J.: In this workers' compensation case, the single commissioner found
Chisholm Frampton failed to meet his burden of proof under S.C. Code Ann. §
42-9-35 (2015) to show his subsequent, on-the-job injury aggravated his preexisting
neck condition. Nevertheless, the single commissioner found because the
Department of Natural Resources (DNR) admitted the claim and provided medical
treatment, Frampton was entitled to benefits for a 20% permanent partial disability
to his spine. The appellate panel reversed, finding the single commissioner's
conclusion that Frampton did not meet his burden of proof under § 42-9-35 was
correct and, as an alternate ground for reversal, found because the finding was not
appealed, it was the law of the case. The appellate panel therefore concluded
Frampton was not entitled to benefits as a matter of law. Frampton now appeals the
appellate panel's reversal of the single commissioner's award, arguing (1) the
appellate panel erred in requiring him to prove a compensable injury to his spine
after DNR admitted liability, and (2) the single commissioner erred by considering
Frampton's return to work and subsequent promotions in determining his impairment
rating. Because the appellate panel's decision is supported by substantial evidence,
we affirm.
I. Factual and Procedural Background
On September 4, 2010, Frampton experienced neck pain and stiffness after riding in
a pickup truck across a bumpy dove field he and another DNR officer were
inspecting. He reported the incident to his supervisor and went to Doctor's Care
three days later. The notes from that visit indicated Frampton was diagnosed with
cervical and trapezius strains and that workers' compensation paid for the visit.
Frampton was released back to work the same day with the restriction of "no
overhead lifting." He went back to Doctor's Care ten days later for a follow-up visit,
after which he was released to work full duty.
On March 15, 2011, Frampton saw a neurosurgeon, Dr. Byron Bailey, who
examined him for ongoing neck and arm pain. Frampton testified he was referred
by workers' compensation to Dr. Bailey because his neck condition had not
improved since the September 4, 2010 accident. Dr. Bailey's medical records,
however, indicated he had treated Frampton before the dove field incident and was
"following [Frampton] for cervical radiculopathy"1 and described Frampton as
having symptoms of neck pain and right arm numbness that had "progressed from
the study that was done approximately a year ago." The next day, Frampton
underwent a series of tests whereby Dr. Bailey determined he would require spinal
surgery. Dr. Bailey performed a cervical discectomy and fusion on March 21, 2011,
and continued to see Frampton for follow-up visits. Frampton returned to work on
May 1, 2011, but was restricted to light duty for another several weeks.
1
"Cervical radiculopathy is a disease process marked by nerve compression from
herniated disk material or arthritic bone spurs. This impingement typically produces
neck and radiating arm pain or numbness, sensory deficits, or motor dysfunction in
the neck and upper extremities." Eubanks, Cervical Radiculopathy: Nonoperative
Management of Neck Pain and Radicular Symptoms, 81 American Family Physician
33 (2010).
In June 2011, Frampton was involved in a serious car accident. He saw Dr. Bailey
soon after for a previously scheduled appointment and reported experiencing
aggravation of his neck pain. Dr. Bailey determined Frampton likely developed a
cervical strain as a result of the car accident and prescribed a number of medications
and physical therapy. Frampton continued to see Dr. Bailey periodically for neck
pain.
On September 20, 2013, Dr. Bailey completed a Form 14B, stating Frampton
reached maximum medical improvement (MMI) on April 17, 2013, listing his
diagnosis as cervical spondylosis, and assigning him a 20% impairment rating to the
cervical spine. However, Dr. Bailey later revised the form to assign Frampton a 75%
impairment rating to the cervical spine and a 26% whole person impairment rating.
On November 17, 2014, Frampton filed a Form 50 seeking total permanent disability
benefits for the injury to his neck and right arm allegedly sustained during the
dove-field accident. He denied any prior permanent disability.
In its Form 51 Answer to Request for Hearing, DNR stated, "It is [a]dmitted the
employee sustained an injury or illness on or about the date set forth in the Form
50." However, DNR (1) denied any injury to Frampton's right arm; (2) denied
Frampton needed or was entitled to additional medical care as a result of any
work-related injury; (3) claimed Frampton reinjured his cervical spine during his
June 2011 car accident and was currently being treated for that injury; and (4) stated,
"[d]isability, if any, to be determined by the [Worker's Compensation
Commission]." In its prehearing brief, DNR again denied Frampton was
permanently and totally disabled in light of his ability to continue working without
restriction and reiterated its argument that the car accident was a subsequent,
intervening accident. DNR did not, however, cite § 42-9-35 or the issue of
Frampton's preexisting diagnosis of cervical radiculopathy in its Form 51 or Form
58 prehearing brief.
At the beginning of Frampton's hearing, Frampton asserted that during the
September 4, 2010 dove-field incident, he herniated a disc in his cervical spine,
ultimately resulting in surgery and total permanent disability. DNR, however,
opened the hearing by stating:
It is our position that there is no evidence that [Frampton]
sustained any additional injury or exacerbated his known
preexisting condition as a result of the September 4, 2010
accident. [Frampton] has a known preexisting condition,
as indicated in Dr. Bailey's records. Dr. Bailey diagnosed
him with a C6-7 radiculopathy approximately six months
prior to the dove field incident. [Frampton] has a burden
of proof by a preponderance of the evidence that the
preexisting condition was aggravated or exacerbated. We
don't believe he's met that burden of proof.
Frampton did not object to DNR framing the case this way, and the hearing
continued. During the hearing, Frampton testified he was working full time but had
some limitations in what he was physically able to do. He believed he had lost at
least 75% use of his neck because of his ongoing pain and his limited movement;
however, he confirmed he was not taking any medications at the time of the hearing
for his neck.
During the hearing, the issues of Frampton's preexisting diagnosis of cervical
radiculopathy and pre-dove-field visit to Dr. Bailey were extensively discussed.2
Frampton testified he did not recall seeing Dr. Bailey before the September 4, 2010
dove-field incident or having problems in his neck or arm before the incident.
However, Dr. Bailey's medical records, which were stipulated to during the hearing,
did not reference a work-related injury on September 4, 2010. Rather the records
indicated in March 2010, Frampton self-reported numbness in his arm beginning at
least three weeks earlier in February 2010. The records also indicated in March
2010, Frampton had an MRI scan of his neck to determine the cause of the reported
arm and neck pain. Frampton acknowledged he would not have gone to see Dr.
Bailey in March 2010 or had an MRI scan of his neck if he was not having neck pain
at that time, and he agreed that, on the intake forms, he characterized his symptoms
as having begun gradually over a number of years. Frampton also acknowledged he
never mentioned the September 4, 2010 dove-field incident when asked to describe
his injuries to Dr. Bailey.
Frampton urged the single commissioner to find that he lost more than 50% use of
his back as a result of the dove-field incident, and therefore, there was a rebuttable
presumption he had a permanent and total disability. See S.C. Code Ann.
§ 42-9-30(21) (2015). "[S]ection 42-9-30(21) states there is a rebuttable
presumption of [permanent and total disability] when a claimant has 50% or more
loss of use of the back." Watson v. Xtra Mile Driver Training, Inc., 399 S.C. 455,
464, 732 S.E.2d 190, 195 (Ct. App. 2012).
2
At least ten pages of testimony from the transcript are devoted to discussion of the
relationship between Frampton's preexisting diagnosis of cervical radiculopathy, the
onset of neck pain and arm numbness, and the dove-field injury.
DNR argued Frampton's injury resulting from the dove-field incident was merely a
cervical strain and Frampton failed to prove he aggravated his preexisting neck
condition as a result of the dove-field incident pursuant to § 42-9-35. DNR also
argued the June 2011 car accident was a subsequent, intervening accident, breaking
any existing chain of causation between the dove-field accident and Frampton's
injury, relying on Geathers v. 3V, Inc., 371 S.C. 570, 579–80, 641 S.E.2d 29, 34
(2007) (holding when an employee with a preexisting but non-disabling prior injury
suffers a subsequent, disabling injury that aggravates or activates the preexisting
condition, compensability is limited to the second injury, not the first).
In the order following the hearing, the single commissioner found Frampton's
testimony regarding the extent of his preexisting neck injury was not credible; rather,
the single commissioner found Frampton suffered from preexisting neck pain and
right arm numbness before his alleged September 4, 2010 work injury, citing Dr.
Bailey's medical records predating the dove-field incident. The single commissioner
further found there was no medical evidence the September 4, 2010 dove-field
incident aggravated or exacerbated Frampton's preexisting neck condition,
concluding Frampton did not meet his burden of proving a compensable disability
under § 42-9-35.
Nevertheless, the single commissioner awarded Frampton disability benefits
because she found DNR admitted Frampton's claim and provided medical treatment.
As to the details of the award, the single commissioner found Frampton was not
permanently and totally disabled but had sustained 20% permanent partial disability
to his spine as a result of his September 4, 2010 dove-field work-related injury based
on the evidence as a whole, including Dr. Bailey's original Form 14B assigning
Frampton a 20% impairment rating to the cervical spine. The single commissioner
found the June 16, 2011 car accident was not a superseding, intervening act that
broke the chain of causation, finding Geathers inapplicable.
Both Frampton and DNR appealed the single commissioner's order. Frampton
asserted the single commissioner erred in finding Frampton was not totally and
permanently disabled, while DNR alleged the single commissioner erred, "in
awarding medical and compensation benefits to the [Frampton] after finding and
concluding that [Frampton] did not meet his burden of proof under S.C. Code Ann.§
42-9-35[.]" At the hearing in front of the appellate panel, DNR alleged that by not
appealing the single commissioner's specific factual findings and conclusions of law
indicating Frampton did not meet his § 42-9-35 burden, those findings and
conclusions were now the law of the case and Frampton was not entitled to disability
benefits.
In its order reversing the single commissioner, the appellate panel found, according
to § 42-9-35, Frampton "was required to prove, with expert medical evidence stated
to a reasonable degree of medical certainty, that the alleged accident on September
4, 2010 aggravated his pre[]existing neck condition." The appellate panel found the
term "shall" in § 42-9-35 mandated that "only by meeting this statutory burden of
proof may the [worker's compensation commission] properly award medical or
compensation benefits to [Frampton] under the Act." The appellate panel next found
the single commissioner correctly determined Frampton did not meet his burden of
proof under § 42-9-35, and finally, the appellate panel adopted DNR's argument that
because Frampton did not appeal the single commissioner's finding of his failure to
meet his burden of proof for compensability, it was law of the case.
II. Standard of Review
The Administrative Procedures Act (APA) provides a reviewing court "may reverse
or modify the decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions, or decisions are . . .
affected by other error of law [or] clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record." S.C. Code Ann. § 1-23-380(5)(d),
(e) (Supp. 2019); see also Gadson v. Mikasa Corp., 368 S.C. 214, 221, 628 S.E.2d
262, 266 (Ct. App. 2006) ("Pursuant to the APA, this [c]ourt's review is limited to
deciding whether the appellate panel's decision is unsupported by substantial
evidence or is controlled by some error of law."). "In workers' compensation cases,
the [appellate panel] is the ultimate fact finder. An appellate court must affirm the
findings made by the [appellate panel] if they are supported by substantial evidence."
Holmes v. Nat'l Serv. Indus., Inc., 395 S.C. 305, 308, 717 S.E.2d 751, 752 (2011)
(citation omitted). Our supreme court has defined substantial evidence as "not a
mere scintilla of evidence nor the evidence viewed blindly from one side of the case,
but . . . evidence which, considering the record as a whole, would allow reasonable
minds to reach the conclusion that the administrative agency reached or must have
reached in order to justify its action." Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276
S.E.2d 304, 306 (1981) (quoting Laws v. Richland Cty. Sch. Dist. No. 1, 270 S.C.
492, 495–96, 243 S.E.2d 192, 193 (1978)). "The final determination of witness
credibility and the weight assigned to the evidence is reserved to the appellate panel.
Where there are conflicts in the evidence over a factual issue, the findings of the
appellate panel are conclusive." Houston v. Deloach & Deloach, 378 S.C. 543, 551,
663 S.E.2d 85, 89 (Ct. App. 2008) (citations omitted). "Accordingly, a reviewing
court may not substitute its judgment for that of the [appellate panel] as to the weight
of the evidence on questions of fact." Clark v. Aiken Cty. Gov't, 366 S.C. 102, 107,
620 S.E.2d 99, 101 (Ct. App. 2005).
"The claimant has the burden of proving facts that will bring the injury within
the workers' compensation law, and such award must not be based on surmise,
conjecture or speculation." Crisp v. SouthCo. Inc., 401 S.C. 627, 641, 738 S.E.2d
835, 842 (2013) (quoting Clade v. Champion Labs, 330 S.C. 8, 11, 496 S.E.2d 856,
857 (1998)). "[A]n employer who has responded to a workers' compensation claim
may assert a general denial of liability whether or not the response expressly contests
compensability." Hargrove v. Carolina Orthopaedic Surgery Assocs., PA, 389 S.C.
119, 124, 697 S.E.2d 641, 643 (Ct. App. 2010). "Injury" for purposes of workers'
compensation means "only injury by accident arising out of and in the course of
employment." S.C. Code Ann. § 42-1-160(A) (2015); see also Turner v. SAIIA
Constr., 419 S.C. 98, 105, 796 S.E.2d 150, 154 (Ct. App. 2016) ("For an accidental
injury to be compensable, it must "aris[e] out of and in the course of employment."
(quoting § 42-1-160(A))). "An injury arises out of employment if it is proximately
caused by the employment." Id.
III. Discussion
Frampton argues because DNR admitted the injury and paid for some of his
treatment with Dr. Bailey, the parties believed the only disputed issue at the hearing
before the single commissioner would be the extent of his spinal injury and whether
his arms were injured. Frampton contends DNR did not properly present § 42-9-35
as a defense because it failed to specify the statute as a defense on its Form 51 or in
its prehearing brief. He further contends because DNR admitted the injury, he was
not on notice he would be required to prove liability.
DNR acknowledges it admitted Frampton suffered an accident involving his cervical
spine on its Form 51 but argues it also specifically denied liability for any workers'
compensation benefits on the Form and in its prehearing brief. According to DNR,
its admission that Frampton sustained an injury did not absolve him of his burden of
proving entitlement to benefits, including his burden under § 42-9-35. DNR
maintains § 42-9-35 is a statutory prerequisite to compensation benefits when there
is a preexisting condition, rather than an affirmative defense. DNR argues it was not
aware of Frampton's potential preexisting condition until it received Frampton's
medical records on the eve of the hearing before the single commissioner, at which
time it raised the issue of § 42-9-35 without objection.
A. Admitted Claim
§ 42-9-35 provides:
(A) The employee shall establish by a preponderance of
the evidence, including medical evidence, that:
(1) the subsequent injury aggravated the preexisting
condition or permanent physical impairment; or
(2) the preexisting condition or the permanent
physical impairment aggravates the subsequent
injury.
(B) The commission may award compensation benefits to
an employee who has a permanent physical impairment or
preexisting condition and who incurs a subsequent
disability from an injury arising out of and in the course of
his employment for the resulting disability of the
permanent physical impairment or preexisting condition
and the subsequent injury.
See also Burnette v. City of Greenville, 401 S.C. 417, 427, 737 S.E.2d 200, 205–06
(Ct. App. 2012) ("An injured employee 'who has a permanent physical impairment
or preexisting condition' may receive benefits for a subsequent work-related
disability if he establishes by a preponderance of the evidence that 'the subsequent
injury aggravated the preexisting condition or permanent physical impairment.'"
(quoting § 42-9-35)). "The claimant's right to compensation for aggravation of a
preexisting condition arises when the claimant has a dormant condition that becomes
disabling because of the aggravating injury." Murphy v. Owens Corning, 393 S.C.
77, 86, 710 S.E.2d 454, 458 (Ct. App. 2011).
We find the appellate panel did not err in reversing the single commissioner's
conclusion that Frampton's claim was admitted. While DNR admitted an injury
occurred on September 4, 2010, in its Form 51 and provided initial treatment, the
inquiry into compensability under the Worker's Compensation Act does not end
there. First, DNR's initial provision of treatment for Frampton's injury does not estop
it from later contesting its compensability under the Act. See Dozier v. Am. Red
Cross, 411 S.C. 274, 292–93, 768 S.E.2d 222, 231–32 (Ct. App. 2014) (holding
employer did not waive its right to contest the compensability of the claimant's injury
by providing treatment for 728 days and explaining a finding of waiver would
discourage employers from providing treatment). Next, "preexisting condition," "§
42-9-35," and "burden of proof" are not special or affirmative defenses that must be
raised in a Form 51 or be forever lost. See S.C. Code Ann. Regs. 67-603(C) (2012)
(listing special and affirmative defenses allowed by the Act, which are forfeited if
not specifically raised in a Form 51 or Form 53). Rather, we agree with the appellate
panel that when the facts of a worker's compensation case give rise to a claim that
falls under § 42-9-35, it is the burden of the claimant to prove "by a preponderance
of the evidence, including medical evidence, that . . . the subsequent injury
aggravated the preexisting condition or permanent physical impairment; or . . . the
preexisting condition or the permanent physical impairment aggravates the
subsequent injury" in order to be eligible for compensation for that injury. § 42-9-35.
Accordingly, we read DNR's Form 51 as a general denial of liability, and as such,
we find DNR's failure to specifically raise the issue of burden of proof does not
preclude Frampton from having to prove his admitted injury was compensable at his
contested-case hearing. See Hargrove, 389 S.C. at 124, 697 S.E.2d at 643 (holding
employer's failure to raise the issue of causation in its Form 51 did not preclude the
commission from denying the claim on that ground; the claimant has the burden to
prove compensability and employer's Form 51 was a general denial of liability).
Next, we acknowledge this case did not proceed in a typical or ideal way. The
Worker's Compensation Act is designed to expedite compensation for employees
who are injured on the job. See Machin v. Carus Corp., 419 S.C. 527, 534, 799
S.E.2d 468, 471 (2017) ("The Workers' Compensation Act was designed to supplant
tort law by providing a no-fault system focusing on quick recovery, relatively
ascertainable awards, and limited litigation."(quoting Nicholson v. S.C. Dep't of Soc.
Servs., 411 S.C. 381, 389, 769 S.E.2d 1, 5 (2015))); Parker v. Williams & Madjanik,
Inc., 275 S.C. 65, 70, 267 S.E.2d 524, 526 (1980) ("The South Carolina Workmen's
Compensation [Act] created a comprehensive approach to provide compensation for
employees injured by accidents arising out of and in the course of their employment.
The employee receives the right to swift and sure compensation; the employer
receives immunity from tort actions by the employee. This quid pro quo approach
to workmen's compensation has worked to the advantage of society as well as the
employee and employer."). As such, the procedures in the Act and its accompanying
regulations are designed so that once the Forms are completed and filed, only very
narrow contested issues will proceed to a hearing—with abundant notice—so the
single commissioner is able to make an expedient and fair compensation decision
for both the employer and employee. See e.g. S.C. Code Ann. § 42-1-700 to -705
(2015) (statutes requiring the Form 50 and Form 51 be filled out with "as much
specificity as possible"); S.C. Code Ann. Regs. 67-601 to -615 (2012 & Supp. 2019)
(delineating detailed procedures for contested-case hearings including deadlines for
raising issues, amending Forms, and requesting an adjournment of a hearing upon a
showing of good cause).
In this case, although it should have been raised in the Form 50, Form 51, or the
Form 58 pre-hearing briefs, the issue of Frampton's preexisting diagnosis and its
effect on the compensability of his September 4, 2010 dove-field injury was not
raised until the contested-case hearing itself. It appears Dr. Bailey's deposition had
been postponed, and DNR had only received Dr. Bailey's treatment records on the
eve of the hearing. Once the hearing began, Frampton's claim was structured as a
§ 42-9-35 claim without objection, and Frampton made no motion to adjourn the
hearing pursuant to S.C. Code Ann. Reg. 67-613 (Supp. 2019) for good cause or for
additional discovery. See Morgan v. JPS Automotives, 321 S.C. 201, 203, 467
S.E.2d 457, 459 (Ct. App. 1996) (finding that when claimant entered the contested-
case hearing understanding the only the issue to be determined was eligibility for
temporary benefits, but the issue of disability compensation was raised, claimant's
oral motion for an adjournment to retrieve additional proof of disability should have
been granted). The parties may have had valid reasons, strategic or otherwise, for
wanting to press forward with the hearing. The issue of the relationship of the dove-
field incident and Frampton's preexisting cervical radiculopathy was discussed
extensively throughout the hearing, and the single commissioner ruled on the issue.
While South Carolina's Rules of Civil Procedure do not govern worker's
compensation claims, we find the doctrine of trial by implied consent to be
persuasive in making sense of what happened in Frampton's case, especially
considering worker's compensations hearings are designed to be more informal than
civil litigation. See Fore v. Griffco of Wampee, Inc., 409 S.C. 360, 373, 762 S.E.2d
37, 44 (Ct. App. 2014) (finding an amendment to a Form 58 should be allowed if the
amendment is made as promptly as possible even if the amendment is made within
ten days of the contested-case hearing); Lizee v. S.C. Dep't of Mental Health, 367
S.C. 122, 130 n. 2, 623 S.E.2d 860, 864 n. 2 (Ct. App. 2005) (recognizing "the
informal nature of administrative proceedings before the Commission").
Accordingly, we find the issue of whether Frampton's dove-field injury was
compensable under § 42-9-35 was litigated at the hearing by implied consent, and
we find no error in the appellate panel's determination that Frampton's September 4,
2010 dove-field injury claim would only be compensable under the Worker's
Compensation Act if Frampton satisfied his § 42-9-35 burden of proof. See, e.g.,
Rule 15(b), SCRCP ("When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings."); Fraternal Order of Police v. S.C. Dep't of Revenue,
352 S.C. 420, 435, 574 S.E.2d 717, 725 (2002) ("In order to be tried by implied
consent, the issue must have been discussed extensively at trial."); Norwest
Properties, LLC v. Strebler, 424 S.C. 617, 625, 819 S.E.2d 154, 159 (Ct. App. 2018)
("An issue cannot be tried by implied consent when one party expressly objects.");
Holroyd v. Requa, 361 S.C. 43, 60, 603 S.E.2d 417, 426 (Ct. App. 2004) ("Failure
to object to the introduction of evidence at the time the evidence is offered
constitutes a waiver of the right to have the issue considered on appeal.").
B. Substantial Evidence
Once the appellate panel concluded Frampton's claim was a § 42-9-35 aggravation
of a preexisting condition claim, the appellate panel next reversed the single
commissioner's award of compensation for Frampton's September 4, 2010
dove-field injury. First, the appellate panel found Frampton did not appeal the single
commissioner's finding that he failed to satisfy his § 42-9-35 burden of proof;
therefore, that finding was the law of the case,3 and second, the appellate panel found
the greater weight of the evidence presented at the hearing supported the conclusion
that the September 4, 2010 dove-field injury was not compensable.
We find there is substantial evidence supporting the appellate panel's decision. See
Gadson, 368 S.C. at 221, 628 S.E.2d at 266 ("Pursuant to the APA, this [c]ourt's
review is limited to deciding whether the appellate panel's decision is unsupported
by substantial evidence or is controlled by some error of law."). Dr. Bailey's medical
records from March 2010 and Frampton's own testimony demonstrate he had a
preexisting neck condition (cervical radiculopathy) at least six months before the
dove-field incident. Section 42-9-35 provides a claimant "shall establish by a
preponderance of the evidence" a subsequent work-related injury aggravated a
preexisting condition. Frampton did not prove the dove-field incident aggravated
his preexisting neck condition and only referenced the existence of the preexisting
condition when DNR presented him with Dr. Bailey's medical records at the hearing.
Nonetheless, even if Frampton had met his burden pursuant to § 42-9-35, he did not
show his neck injury was proximately caused by the dove-field accident pursuant to
§ 42-1-160(A). See Crisp, 401 S.C. at 641, 738 S.E.2d at 842 ("The claimant has
the burden of proving facts that will bring the injury within the
workers' compensation law, and such award must not be based on surmise,
conjecture or speculation." (quoting Clade, 330 S.C. at 11, 496 S.E.2d at 857)); see
also Turner, 419 S.C. at 105, 796 S.E.2d at 154 ("For an accidental injury to be
compensable, it must 'aris[e] out of and in the course of employment.'" (quoting §
3
Although we do not need to reach the issue of whether the single commissioner's
finding that Frampton failed to meet his burden of proof is the law of his case, we
express doubts the appellate panel applied the law of the case doctrine correctly in
its order reversing the single commissioner. See I'On, L.L.C. v. Town of Mt.
Pleasant, 338 S.C. 406, 421–22, 526 S.E.2d 716, 724 (2000) (finding the
preservation requirements for appeal are applied differently according to whether or
not the party prevailed below).
42-1-160(A))); id. ("An injury arises out of employment if it is proximately caused
by the employment."). None of Dr. Bailey's medical records mention the dove-field
incident. This, taken with the fact that Frampton had already seen Dr. Bailey at least
six months before the incident for the same injury, is substantial evidence supporting
the appellate panel's conclusion that Frampton's treatment with Dr. Bailey, including
his surgery, was not causally related to the dove-field incident but was part of a long-
term, ongoing course of treatment for Frampton's progressive, degenerative, disc
disease, which had begun years prior. This conclusion is consistent with Frampton's
own testimony before the single commissioner that he told Dr. Bailey his symptoms
began gradually over a number of years and with Dr. Bailey's notes from the March
2010 visit in which he stated Frampton had a history of cervical radiculopathy.
C. Return to Work
Finally, we reject Frampton's argument the single commissioner erroneously
considered his post-injury return to work and subsequent promotions in estimating
the percentage of his impairment. This issue is unpreserved for this court's review
because Frampton failed to raise it before the appellate panel, and the appellate panel
made no ruling on it. See Robbins v. Walgreens & Broadspire Servs., Inc., 375 S.C.
259, 266, 652 S.E.2d 90, 94 (Ct. App. 2007) (an issue not raised to the single
commissioner or appellate panel is not appropriate for appellate review); see also
Harbin v. Owens-Corning Fiberglas, 316 S.C. 423, 428, 450 S.E.2d 112, 115 (Ct.
App. 1994) (arguments not raised to the appellate panel or circuit court are not
preserved for appeal). Nevertheless, it is clear from the single commissioner's order
that she only considered Frampton's return to work, subsequent promotions, and
earning capacity in the context of determining the lack of credibility of Dr. Bailey's
revised Form 14B and in determining Frampton was not entitled to benefits under
S.C. Code Ann. § 42-9-10 (2015), which is not at issue.
AFFIRMED.
KONDUROS, J., concurs.
LOCKEMY, C.J., concurring in part and dissenting in part: I concur in part
and respectfully dissent in part. I concur with the majority's finding that the single
commissioner did not err by considering Frampton's post-injury return to work and
subsequent promotion in determining he was not entitled to benefits under section
42-9-10. However, I would reverse the appellate panel's conclusion Frampton failed
to satisfy his burden of proof under section 42-9-35 and was therefore not entitled to
any benefits under the Workers' Compensation Act.
Frampton contends the appellate panel erred by requiring him to prove a
compensable injury to his spine when DNR admitted liability for an injury to the
cervical spine. I agree. "An appellate court may reverse a decision by the Appellate
Panel if it is affected by an error of law or is clearly erroneous in view of the
substantial evidence." Harrison v. Owen Steel Co., 422 S.C. 132, 137, 810 S.E.2d
433, 435 (Ct. App. 2018).
Frampton alleged in his Form 50 that he suffered an injury to his neck and right arm
when he was riding in a pickup truck through a dove-field in September of 2010. In
its Form 51, DNR admitted that Frampton sustained an injury on the date he alleged,
and it stated it admitted "an injury to the cervical spine only" but denied the extent
of the injury and all other body parts, including the arms. DNR denied Frampton
was entitled to additional medical care for the injury because he suffered a
subsequent injury to the cervical spine on June 16, 2011. In my view, by admitting
an injury to the cervical spine, DNR agreed Frampton injured his spine as alleged in
his Form 50. In addition, Frampton had been under a neurosurgeon's care for several
years before he filed his Form 50, and DNR had paid for much of this treatment.
The neurosurgeon completed a "physician's statement" describing his assessment of
Frampton's "work related injury." All of this occurred before DNR filed its Form 51
admitting injury to Frampton's cervical spine. Further, in its Form 58, DNR argued
the injury Frampton suffered in the June 2011 car accident either (1) aggravated his
preexisting neck condition or (2) was a subsequent, intervening accident that severed
the causal relationship between the September 4, 2010 accident and the alleged
disability. As the majority acknowledged, DNR did not allege Frampton had been
diagnosed with a preexisting condition prior to the September 2010 accident or refer
to section 42-9-35 in either form. In addition, DNR did not mention section 42-9-
35 during the hearing before the single commissioner.
The single commissioner found as a fact that, although Frampton failed to satisfy his
burden of proof under section 42-9-35, DNR admitted the claim and provided
medical treatment. The single commissioner found Frampton suffered a 20%
permanent partial disability to his back as a result of his work injury. The appellate
panel did not disturb the single commissioner's finding that DNR admitted the claim,
and none of DNR's grounds for appeal from the single commissioner's order charged
her with error in finding the claim was admitted. In my opinion, DNR admitted the
September 4, 2010 injury to Frampton's spine and the only disputed issues at the
hearing before the single commissioner were the extent of the injury and whether
the arms were affected. Because this was an admitted case, I would hold the
appellate panel erred by concluding that, pursuant to section 42-9-35, Frampton was
required to prove that either the September 4, 2010 injury aggravated his preexisting
condition or the preexisting condition aggravated the injury. Nothing in DNR's
Form 51 or Form 58 notified Frampton that he would be required to show his
September 4, 2010 accident aggravated a preexisting neck condition. I would
therefore reverse the appellate panel's holding that Frampton was not entitled to any
benefits under the Workers' Compensation Act.
Further, I believe the appellate panel misapplied the law of the case doctrine. "It is
a fundamental rule of law that an appellate court will affirm a ruling by a lower court
if the offended party does not challenge that ruling." Lindsay v. Lindsay, 328 S.C.
329, 338, 491 S.E.2d 583, 588 (Ct. App. 1997). "Failure to challenge the ruling 'is
an abandonment of the issue and precludes consideration on appeal.'" Id.
(quoting Biales v. Young, 315 S.C. 166, 168, 432 S.E.2d 482, 484 (1993)). "The
unchallenged ruling, 'right or wrong, is the law of the case and requires affirmance.'"
Id. (quoting Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 161, 177 S.E.2d 544,
544 (1970)). Here, notwithstanding the single commissioner determined Frampton
failed to meet his burden of proof pursuant to 42-9-35, she ruled in his favor on this
issue, finding DNR admitted the claim. Without expressly addressing this finding,
the appellate panel relied on the law of the case doctrine to affirm the single
commissioner's conclusion that Frampton failed to satisfy his burden of proof under
section 42-9-35. However, there was no reason for Frampton to appeal the single
commissioner's ruling as to section 42-9-35 because he prevailed on the issue.
Therefore, I believe the law of the case doctrine did not apply and the appellate panel
erred by relying on this doctrine to support its holding.
For the foregoing reasons, I respectfully dissent from the majority opinion and would
reverse the appellate panel in part.