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Dent v. East Richland County Public Service District

Court of Appeals of South Carolina

March 28, 2018

James Dent, Appellant,
v.
East Richland County Public Service District, Employer, and State Accident Fund, Carrier, Respondents. Appellate Case No. 2015-001702

          Heard February 8, 2017

          Appeal From The Workers' Compensation Commission

          Matthew C. Robertson, of McDaniel Law Firm, of Columbia, for Appellant.

          Page Snyder Hilton, of the State Accident Fund, of Columbia, for Respondents.

          LOCKEMY, C.J.

         James Dent appeals the South Carolina Workers' Compensation Commission Appellate Panel's (Appellate Panel) order, arguing the Appellate Panel erred in (1) failing to find he is totally and permanently disabled, and (2) finding his disability is primarily the result of his lung cancer and not his work-related back injury. We reverse.

         FACTS/PROCEDURAL BACKGROUND

         James Dent was employed by the East Richland County Public Service District (the District) as a sewer line maintenance foreman.[1] On May 1, 2012, Dent sustained an admitted injury to his lower back in the course of his employment while attempting to move a manhole cover.

         Dent was initially treated by Dr. Paula Belmar. Dent complained to Dr. Belmar of low back pain which radiated down his right leg. Dr. Belmar noted Dent's back pain and lumbar radiculopathy[2] in her assessment and prescribed Dent pain medication and made referrals for physical therapy and an MRI. On June 25, 2012, Dent underwent a lumbar spine MRI which revealed a neoplasm in the lung. Dent was subsequently diagnosed with lung cancer.[3]

         In July 2012, Dent began treatment with Dr. Brett Gunter. Dr. Gunter ordered a second MRI to evaluate Dent's lower back pain. The MRI revealed moderate spinal stenosis at L3-4 and L4-5. Dr. Gunter diagnosed Dent with lumbar spondylosis with moderate stenosis and lumbar radiculopathy. He ordered physical therapy and lumbar epidural steroid injections.[4] Dr. Gunter also referred Dent to a work hardening program. Following an evaluation, it was determined Dent was not a candidate for the program due to shortness of breath and back pain. The physical therapist who performed the evaluation and observed Dent's physical abilities over a period of several months, found Dent would be limited to performing sedentary to limited light physical demand labor.

         On May 8, 2013, Dr. Gunter opined Dent had reached maximum medical improvement (MMI) with a 10% permanent impairment to the whole person and released Dent to work at a medium duty level. Dr. Gunter further opined Dent may require non-steroidal anti-inflammatory drugs for future medical treatment.

         On July 8, 2013, Dent received an independent medical exam (IME) from Dr. Leonard Forrest. Dr. Forrest noted Dent suffered pain in his back and right leg and opined Dent had lost more than 50% of the use of his back and suffered a 21% impairment to the whole person as a result of his work accident. Dr. Forrest further opined Dent could not return to work-even sedentary work-as a result of his injury. According to Dr. Forrest, Dent's inability to work was not a result of his lung cancer.

         In November 2013, Dent received a vocational evaluation from Harriet Fowler. Fowler opined,

given [Dent's] advancing age . . ., education and functional academic levels including illiteracy, work history and attendant skills (all heavy and very heavy categories and lower skilled), and significant and severe physical limitations it is clearly more likely than not that [Dent] is and will be . . . unable to obtain or maintain substantial gainful employment.

         On September 20, 2013, Dent filed a Form 50 alleging he was permanently and totally disabled as a result of his work accident. Dent alleged he suffered compensable injuries to his back, right leg, and left leg. The District and the State Accident Fund (collectively, Respondents) subsequently filed a Form 51, admitting an injury to Dent's back and denying any injury to Dent's legs.

         A hearing was held before the Single Commissioner on February 7, 2014. At the hearing, Dent alleged he was entitled to permanent total disability (PTD) due to either (1) loss of earning capacity under section 42-9-10 of the South Carolina Code (2015) or (2) a 50% or more loss of use of the back under subsection 42-9-30(21) of the South Carolina Code (2015). Dent testified his lower back pain rates as an eight out of ten and radiates down his right-and sometimes, left-leg. Dent also testified he has numbness and weakness in his right leg and difficulty sitting and standing for long periods of time. According to Dent, the physical therapy and steroid injections he was prescribed did not provide him with any lasting pain relief. Dent further testified he has been employed as a heavy laborer his entire working career and does not believe he could return to the type of work he previously performed.

         Respondents argued Dent only sustained an injury to his back as a result of his work accident and was not totally and permanently disabled. Respondents asserted Dr. Gunter's 10% impairment rating should be accorded the greatest weight and argued Dent could perform work within the restrictions placed by his medical providers. Respondents further asserted Dent's lung cancer was a disabling factor which eclipsed his back injury.

         In an April 14, 2014 order, the Single Commissioner held (1) Dent sustained a work-related injury to his back; (2) Dent's right leg was affected by his back injury; (3) this was a "'one body part' (i.e. Singleton) case"[5]; (4) Dent's disability stemmed primarily from his lung cancer; (5) Dent had reached MMI and was entitled to an award of 35% permanent partial disability (PPD) pursuant to subsection 42-9-30(21); and (6) Dent was entitled to further medical treatment for his back. The Single Commissioner found ...


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