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Russell v. Wal-Mart Stores, Inc.

Court of Appeals of South Carolina

January 20, 2016

Paula Russell, Appellant,
v.
Wal-Mart Stores, Inc., and American Home Assurance, Respondents

Heard October 20, 2015

Appeal From The Workers' Compensation Commission. Appellate Case No. 2014-000454.

C. Daniel Vega, of Chappell Smith & Arden, of Columbia, and William Ashley Jordan, III, of Jordan Law Center, LLC, of Greenville, both for Appellant.

Johnnie W. Baxley, III, of Willson Jones Carter & Baxley, P.A., of Mount Pleasant, for Respondents.

SHORT, J. GEATHERS and MCDONALD, JJ., concur.

OPINION

Page 754

SHORT, J.

In this workers' compensation action against Wal-Mart Stores, Inc. and American Home Assurance (Wal-Mart), Paula Russell appeals, arguing the South Carolina Workers' Compensation Commission erred in (1) requiring a change of condition to be established by objective evidence; (2) ruling substantial evidence existed to deny a change of condition; and (3) finding Russell's statements were self-serving and conclusory. We reverse and remand.

BACKGROUND FACTS

In 2009, Russell was employed by Wal-Mart as an assistant store manager and had been an employee for more than ten years. On November 3, 2009, she was lifting something in the course of her employment and hurt her back and pelvis. Because she was pregnant at the time, her treatment did not include diagnostic testing and was very conservative. After her pregnancy, she had an MRI scan and was treated with medication, exercises, and an injection. At the time, her treating doctor, Dr. James O. Merritt, IV, determined no surgery was required.

Russell continued to work at Wal-Mart with a heavy-lifting (over thirty pounds) restriction. The medical records indicated Russell was diagnosed with back strain and had degenerative disc disease at L5-S1. By single commissioner order filed June 8, 2011, Russell was found to have reached maximum medical improvement (MMI) on February 2, 2011, and was awarded seven percent permanent partial disability. The award also provided for " ongoing anti-inflammatory medication . . . as long as such medication is causally related to her work accident and tends to lessen her period of disability."

Page 755

On December 9, 2011, Russell filed a Form 50, alleging a change of condition for the worse to her back requiring additional medical treatment, including surgery. After a hearing on February 11, 2013, the single commissioner noted Russell testified she experienced new symptoms, including pain radiating down into her legs and shaking; she found her hour-long drive to and from work difficult; she requested to be transferred to a Wal-Mart closer to home; and in December 2011, Wal-Mart fired her rather than honoring her request. Finding Russell's testimony to be credible and relying on the testimony of Drs. Merritt and William S. Edwards, the commissioner found Russell suffered a change of condition and ordered Wal-Mart to provide medical care and temporary total disability benefits.

After a hearing, the full commission (the Commission) reversed the single commissioner. The Commission gave " limited weight to the testimony of [Russell] as it is conclusory and self-serving." The Commission found Russell was unable to establish (1) she suffered any new complaints; (2) when her condition worsened; and ...


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