Griffin v. Senior Care ( 2012 )

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
Linda Griffin, Employee, Appellant,
v.
Senior Care, Inc., Employer, and, The PMA Insurance
Group, Carrier, Respondents.
Appellate Case No. 2011-202729
Appeal from the Appellate Panel
South Carolina Workers' Compensation Commission
Unpublished Opinion No. 2012-UP-517
Submitted August 1, 2012 – Filed September 12, 2012
AFFIRMED
Steve Wukela, Jr., of Wukela Law Office, of Florence,
for Appellant.
R. Daniel Addison, of Hedrick Gardner Kincheloe &
Garofalo, LLP, of Columbia, for Respondent.
PER CURIAM: Linda Griffin (Employee) appeals the order of the Appellate
Panel of the South Carolina Workers' Compensation Commission (Appellate
Panel) awarding her permanent partial disability benefits. On appeal, Employee
argues the Appellate Panel erred in (1) finding she reached maximum medical
improvement (MMI) on January 5, 2011; (2) finding she was not entitled to
Dodge1 medical benefits; (3) finding her psychological overlay was not causally-
related to her back injury; and (4) violating her due process rights. We affirm.2
1. We find substantial evidence supports the Appellate Panel's finding Employee
reached MMI on January 5, 2011. See Hall v. United Rentals, Inc., 371 S.C. 69,
89, 636 S.E.2d 876, 887 (Ct. App. 2006) ("MMI is a factual determination left to
the discretion of the [Appellate] [P]anel. It is not within our province to reverse
findings of the [A]ppellate [P]anel which are supported by substantial evidence."
(citation and quotation marks omitted)). Here, Dr. Rakesh Chokshi, Employee's
treating physician for more than three years, determined on January 5, 2011, that
Employee, who suffered from chronic back pain, had reached MMI. He also found
that Employee "may need pain management long term." However, Dr. Chokshi
never determined further medical treatment would lessen Employee's disability.
See id. ("MMI is a term used to indicate that a person has reached such a plateau
that, in the physician's opinion, no further medical care or treatment will lessen the
period of impairment."). Accordingly, the Appellate Panel did not err.
2. We find the Appellate Panel properly denied Employee's request for continuing
medical benefits. Employee offered no medical evidence stating to a reasonable
degree of medical certainty that further medical treatment would lessen her period
of disability. See S.C. Code Ann. § 42-15-60(A) (Supp. 2011) (providing "[t]he
employer shall provide medical . . . treatment . . . for a period not exceeding ten
weeks from the date of an injury, to effect a cure or give relief and for an
additional time as in the judgment of the [Appellate Panel] will tend to lessen the
period of disability as evidenced by expert medical evidence stated to a reasonable
degree of medical certainty"); see also Dodge, 334 S.C. at 580, 514 S.E.2d at 596
("[Section 42-15-60(A)] clearly allows the [Appellate Panel] to award medical
benefits beyond [ten] weeks from the date of injury only where the [Appellate
Panel] determines such medical treatment would tend to lessen the period of
disability." (citation and quotation marks omitted)). In this case, the only medical
evidence concerning future medical treatment is Dr. Chokshi's testimony that
Employee "may" need long-term pain management. However, he never testified
that continuing medical treatment would lessen her period of disability.
Accordingly, the Appellate Panel did not err.
1
Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 514 S.E.2d 593 (Ct. App.
1999).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
3. We find the Appellate Panel did not err in finding Employee was not entitled to
benefits for her psychological overlay of anxiety and depression. Here, Employee
offered no evidence her depression and anxiety were casually related to her back
injury. See Bass v. Kenco Grp., 366 S.C. 450, 465, 622 S.E.2d 577, 584-85 (Ct.
App. 2005) ("[A] mental injury induced by a physical injury is compensable. . . . A
condition, which is induced by a physical injury, is thereby causally related to that
injury."). Furthermore, Dr. Janet Woolery, Employee's treating psychiatrist, noted
Employee had several personal stressors in her life. Moreover, Dr. Woolery made
no finding that Employee's anxiety and depression were causally related to her
back injury. Accordingly, the Appellate Panel did not err.
4. We find Employee did not preserve her due process argument for our review
because she did not raise the issue to the Appellate Panel. See Henderson v. F & D
Elec. Contractors, 306 S.C. 256, 257 n.1, 411 S.E.2d 225, 226 n.1 (Ct. App. 1991)
(finding an issue is not preserved for appellate review when it was not raised to or
ruled upon by the Appellate Panel); Bakala v. Bakala, 352 S.C. 612, 625, 576
S.E.2d 156, 163 (2003) (finding any due process issues cannot be raised for the
first time on appeal). Accordingly, we affirm based on preservation.
AFFIRMED.
SHORT, KONDUROS, and LOCKEMY, JJ., concur.