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Dozier v. American Red Cross

Court of Appeals of South Carolina

September 17, 2014

Cindy Dozier, Employee, Appellant,
v.
American Red Cross, Employer, and Sedwick CMS, Carrier, Respondents

Heard May 6, 2014.

Page 223

Appeal From The Workers' Compensation Commission. Appellate Case No. 2012-213606.

Stephen Benjamin Samuels, of Samuels Law Firm, LLC, of Columbia, for Appellant.

Wesley Jackson Shull, of Willson Jones Carter & Baxley, PA, of Greenville, for Respondents.

WILLIAMS, J. KONDUROS and LOCKEMY, JJ., concur.

OPINION

Page 224

[411 S.C. 278] WILLIAMS, J.:

In this workers' compensation appeal, Cindy Dozier argues the Appellate Panel of the Workers' Compensation Commission (Appellate Panel) erred in denying her claim for permanent total disability pursuant to section 42-9-10 of the South Carolina Code (Supp. 2013). In addition, she contends the Appellate Panel improperly applied the doctrine of res judicata to bar her claim for Complex Regional Pain Syndrome (CRPS/RSD)[1] when the doctrines of waiver and estoppel should have prevented American Red Cross (ARC) from denying its existence. Last, Dozier contends the Appellate Panel erred in relying on medical opinions that Dozier did not suffer from CRPS/RSD. We affirm.

FACTS/PROCEDURAL HISTORY

Dozier sustained an admitted injury by accident on January 17, 2008, while working as a phlebotomist for ARC. On October 10, 2008, Dozier filed a Form 50 and Form 15, asserting injuries to both arms and entitlement to temporary compensation. Dozier contended the repetitive heavy lifting at ARC caused her to develop bilateral carpal tunnel syndrome. [411 S.C. 279] In lieu of a hearing, the parties entered into a consent order, wherein ARC stipulated Dozier sustained a compensable injury to her left wrist. In addition, ARC authorized treatment for her left wrist as well as a medical determination of her work status and the source of her right wrist pain.

Dozier filed another Form 50 on August 6, 2009, alleging injuries to both her arms, her neck, her back, and her psyche. In response, ARC filed a Form 51 on August 14, 2009, admitting an injury to her left wrist, but denying injuries to her right arm, her neck, and her back. ARC contended she achieved maximum medical improvement (MMI) on August 10, 2009, when ARC's initial authorized treating physician placed her at MMI. As a result, ARC claimed the only remaining issue was the extent of permanent disability to Dozier's left wrist.

Single Commissioner David Huffstetler held a hearing on November 3, 2009. At the hearing, he summarized the parties' arguments as follows:

[Dozier] takes the position that she suffered injuries to both arms, also to her neck and back. . . . And [she] seeks additional treatment for her arms, in particular for [CRPS/RSD] and asks that Dr. Moore be assigned as her treating physician. The defense admits an injury to the left arm only. They deny all other body parts and I assume that [ARC] also den[ies] the request for Dr. Moore to be the treating physician.

Commissioner Huffstetler subsequently issued an instruction to Dozier's counsel to draft a proposed order stating: " [Dozier] suffered injuries to both arms, including [CRPS/RSD], and her neck. [ARC] to pay all causally-related medical bills to date and additional treatment to be directed by Dr. Moore." Commissioner Huffstetler then issued an order on December 17, 2009, which he personally drafted, finding Dozier had injured both of her arms in the course of her employment with ARC. Because she continued

Page 225

to be disabled, Commissioner Huffstetler held she was entitled to temporary total disability as well as continuing medical treatment for both of her arms through a physician of ARC's choosing. The order made no findings regarding Dozier's back, neck, or CRPS/RSD claims.

[411 S.C. 280] Dozier timely filed a notice of appeal with the Appellate Panel and argued Commissioner Huffstetler erred in: (1) failing to order ARC to pay past causally-related medical treatment; (2) allowing ARC to designate a treating physician when ARC willfully failed to provide medical treatment and required Dozier to submit to five independent medical evaluations; (3) failing to assess a mandatory 25% penalty for improper termination of temporary compensation; (4) failing to find Dozier injured her neck and back; and (5) admitting a physician's report into evidence. During the pendency of the appeal, ARC agreed to designate Dr. Timothy Zgleszewski, of Palmetto Spine and Sports Medicine, as Dozier's authorized treating physician. As a result, Dozier withdrew her complaint regarding ARC's selection of her authorized treating physician.

On November 23, 2010, the Appellate Panel affirmed Commissioner Huffstetler's order as modified, requiring ARC to pay for all causally-related medical treatment before December 24, 2008, and after June 29, 2009. The Appellate Panel did not rule on the issues of Dozier's alleged injuries to her neck and back nor did it determine whether her CRPS/RSD was a work-related condition.[2] Neither party appealed this order.

Over the next two years, Dozier continued to be treated at ARC's expense with Dr. Zgleszewski. During that time, Dr. Zgleszewski referred her to Dr. Gerald Shealy, an orthopedist at the Medical University of South Carolina, for carpal tunnel surgery. Dr. Shealy treated her from December 2, 2010, until May 23, 2011, at which time he concluded she had attained MMI for her carpal tunnel syndrome. Dr. Shealy also assigned Dozier a 5% impairment rating to both hands and " at her request, she [wa]s provided with a permanent restriction of 5 pounds." On August 9, 2011, Dr. Zgleszewski concluded Dozier had attained MMI and assigned a 5% impairment rating [411 S.C. 281] to both arms based on her carpal tunnel and a 12% impairment rating to her central nervous system based on her CRPS/RSD diagnosis.

ARC then requested a hearing on September 2, 2011, seeking to terminate Dozier's temporary compensation and to determine her permanent disability. After both parties drafted prehearing briefs, ARC withdrew its request for a hearing. Dozier filed a subsequent Form 50 on October 17, 2011, alleging injuries to both arms as well as her central nervous system and requesting a finding of permanent and total disability. ARC responded, admitting injuries only to the " bilateral wrists."

In response to Dozier's Form 50, Single Commissioner Gene McCaskill held a hearing on February 6, 2012. At the hearing, Dozier contended she was permanently and totally disabled because the five-pound work restrictions imposed upon her by Dr. Shealy and Dr. Zgleszewski prevented her from returning to the workforce. ARC responded, arguing Dozier was only entitled to permanent partial disability to each wrist because she failed to establish she suffered from CRPS/RSD, which was necessary to bring her injury within the ambit of permanent and total disability. Specifically, ARC claimed Dozier had chosen not to pursue her CRPS/RSD claim in her December 2009 appeal, as it was neither raised to nor ruled upon by the Appellate Panel; thus, res judicata barred Dozier from asserting it. In the alternative, ARC argued the preponderance of the evidence did not support a medical diagnosis of CRPS/RSD.

At the hearing before Commissioner McCaskill, Dozier testified she sustained injuries to both her wrists while working as a phlebotomist for ARC. After her injuries, she stated ARC agreed for Dr. Zgleszewski to be

Page 226

her authorized treating physician for CRPS/RSD. Dozier never paid for any of her treatments with Dr. Zgleszewski, stating instead that ARC paid for Dr. Zgleszewski to administer three stellate ganglion blocks as well ...


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