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McMahan v. S.C. Department of Education-Transportation

Court of Appeals of South Carolina

June 15, 2016

Timothy McMahan, Appellant/Respondent,
S.C. Department of Education-Transportation, Employer, and State Accident Fund, Carrier, Respondents/Appellants. Appellate Case No. 2014-002294

          Heard March 15, 2016

         Appeal From The Workers' Compensation Commission

          Kevin B. Smith, of Hoffman Law Firm, of North Charleston, for Appellant/Respondent.

          J. Gabriel Coggiola and George Trask Miars, Jr., both of Willson, Jones, Carter, & Baxley, P.A., of Columbia, for Respondents/Appellants.

          WILLIAMS, J.

         In this 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.


         On June 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.[1]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.

         McMahan 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.

         At 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.

         Dr. 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.

         McMahan 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 person.

         The 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.

         SCDOE 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.


         The 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, 689–90 (2010).


         I. The ...

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