March 15, 2016
From The Workers' Compensation Commission
B. Smith, of Hoffman Law Firm, of North Charleston, for
Gabriel Coggiola and George Trask Miars, Jr., both of
Willson, Jones, Carter, & Baxley, P.A., of Columbia, for
cross-appeal arising from a workers' compensation action,
the estate of Appellant/Respondent Timothy McMahan (the
Estate) appeals the Appellate Panel of the Workers'
Compensation Commission's (the Appellate Panel) decision
to deny the Estate permanent total disability benefits based
upon its conclusion that McMahan had not attained maximum
medical improvement (MMI) prior to his death.
Respondents/Appellants South Carolina Department of Education
and the State Accident Fund (collectively "SCDOE")
cross-appeal, arguing the Appellate Panel erred in omitting a
finding that McMahan was barred from receiving posthumous
permanent disability benefits pursuant to section 42-9-280 of
the South Carolina Code (2015). In the alternative, SCDOE
claims that, even if the Estate could recover benefits after
his death, McMahan's paraplegia would cause his
disability award to abate pursuant to subsection 42-9-10(C)
of the South Carolina Code (2015). SCDOE also argues the
Appellate Panel should have included in its order a finding
that the award of disability benefits violated SCDOE's
due process rights. We reverse.
15, 2011, McMahan was working for SCDOE as a bus mechanic
when a bus he was repairing fell on top of him, crushing his
spine. McMahan suffered a T-12 compression fracture and
underwent two back surgeries at the Medical University of
South Carolina (MUSC) on June 16, 2011, and October 10, 2011.
Dr. Raymond Turner, a neurosurgeon at MUSC, performed both
surgeries.During McMahan's last visit at MUSC, he
indicated he would be moving to Tennessee and requested a
transfer of care and sufficient pain medication to last
through his transfer.
subsequently moved to Tennessee with his wife to care for his
elderly parents. McMahan's medical records indicated he
saw Dr. Patrick Bolt, the physician SCDOE authorized to treat
McMahan, on April 23, 2012. McMahan again visited Dr.
Bolt's practice on May 11, 2012, at which time McMahan
was evaluated by Dr. Bolt's physician's assistant,
who discussed his evaluation and physical examination with
Dr. Bolt that same day.
McMahan's initial visit, Dr. Bolt noted McMahan's
chief complaint was low back pain, particularly in his left
lower extremity. Dr. Bolt's records indicated McMahan
"walk[ed] with a markedly pitched forward gait . . . .
He [wa]s only able to straighten to neutral, he [wa]s able to
flex to 80% of normal. . . . His quadriceps [we]re 3/10 on
the left, hip flexors [we]re 3/10 on the left, otherwise full
strength in the lower extremities." In the
"discussion/plan" portion of Dr. Bolt's notes,
he stated the following:
I have declined to take over [McMahan's] pain management
as this was a stipulation to my seeing the patient[;] [I] was
[to see him] only for a surgical opinion. I have recommended
that the patient be placed in pain management in the
Knoxville area. . . . I will see the patient back after the
imaging studies are obtained. We will see if there is
anything that may be recommended further from a surgical
standpoint. Apparently, the patient is already at maximum
medical improvement but, again, I have no records to confirm
this. There is no change in restrictions at this time.
Bolt performed X-rays during the initial visit and ordered an
updated MRI, a CT scan, and a duplex scan on that date. After
a review of those scans and McMahan's return visit on May
11, 2012, Dr. Bolt noted McMahan's symptoms were
"exactly the same" as those from his prior visit.
Dr. Bolt did not observe any new neural pinches on the MRI
but ordered an EMG to rule out any radiculopathies.
died from an unrelated heart condition on October 6, 2012. On
February 27, 2013, Dr. Bolt, as the authorized treating
physician, completed a Form 14B for the Workers'
Compensation Commission, indicating the date of McMahan's
MMI was April 23, 2012. In addition, Dr. Bolt explained his
conclusion regarding McMahan's impairment, stating
"he had thought [McMahan] was previously at [MMI], [but]
apparently that was not the case." According to Dr.
Bolt, McMahan was at MMI when he saw McMahan on April 23,
2012. Dr. Bolt believed McMahan was totally disabled given
his limited ability to walk and his need for a wheelchair.
Based upon McMahan's spinal cord injury and a review of
the American Medical Association (AMA) guidelines, Dr. Bolt
concluded McMahan sustained a 54% impairment to his whole
Estate subsequently filed a Form 50 on May 23, 2013, alleging
McMahan sustained injuries to his head, brain, back, internal
organs, teeth, legs, mouth, and ribs in the course and scope
of his employment. SCDOE filed a Form 51 on June 13, 2013,
admitting injury to McMahan's back and denying all other
claims. The single commissioner held a hearing on August 15,
2013, and found McMahan reached MMI prior to his death.
Further, the single commissioner concluded the Estate was
entitled to total disability benefits under section
42-9-30(21) of the South Carolina Code (2015) based upon a
50% or greater loss of use to McMahan's back. Because
McMahan was entitled to compensation pursuant to section
42-9-30, the single commissioner concluded the claim did not
abate under the statute and, therefore, the Estate was
entitled to the unpaid balance of McMahan's permanent and
total disability benefits as prescribed by section 42-9-280.
timely appealed to the Appellate Panel, and a review hearing
was held on July 22, 2014. By order dated September 30, 2014,
the Appellate Panel reversed the single commissioner's
decision, finding McMahan was not at MMI prior to his death
and, therefore, he was not entitled to permanent total
disability benefits. This cross-appeal followed.
Administrative Procedures Act (APA) establishes the standard
for judicial review of workers' compensation decisions.
Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540,
689 S.E.2d 615, 618 (2010). Under the APA, this court can
reverse or modify the decision of the Appellate Panel when
the substantial rights of the appellant have been prejudiced
because the decision is affected by an error of law or is
clearly erroneous in view of the reliable, probative, and
substantial evidence considering the record as a whole.
Transp. Ins. Co. & Flagstar Corp. v. S.C. Second
Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687,