SECONDARY CONSEQUENCES OF A COMPENSABLE INJURY - - TREATMENT AND COMPENSATION IMPLICATIONS

I. SCOPE OF EMPLOYER’S/CARRIER’S LIABILITY

Once an individual sustains a physical injury which is compensable pursuant to the South Carolina Workers’ Compensation Act, “[e]very natural consequence which flow[s]. . . from this injury, unless the result of an independent intervening cause, sufficient to break the chain of causation, is likewise compensable.” Whitfield v. Daniel Construction Company, 226 S.C. 337, 83 S.E. 2d 460, 462 (1954); Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 458 S.E. 2d 76, 79 (Ct. App. 1995) (“Our courts have clearly held the natural consequences flowing from a compensable injury, absent an independent intervening cause, are compensable.”); See also, Tims v. J. D. Kitts Construction, 393 S.C. 496, 713 S.E. 2d 496, 713 S.E. 2d 340, 344 (Ct. App. 2011) (Heatstroke suffered by quadriplegic while waiting in Employer’s/Carrier’s designated home healthcare provider’s unairconditioned vehicle “was within the range of compensable consequences of his original work-related injury. . . [, rather than] an independent, intervening act. . . .”).

II. MEDICAL TREATMENT

A. SECONDARY CONSEQUENCES OF PRIMARY INJURY

In Whitfield, the Supreme Court specifically recognized that “new injuries resulting indirectly from the original injury. . . are likewise held compensable. . . .” 83 S.E. 2d at 462; See also, Tatum v. Medical University of South Carolina, 346 S.C. 194, 552 S.E. 2d 18, 22 (2001). Given this rather broad pronouncement, any determination as to an Employee’s entitlement to treatment for secondary injury components necessarily hinges upon the establishment of medical causation.

B. DELETERIOUS EFFECTS OF TREATMENT/MALPRACTICE

“. . . [N]ew injuries resulting indirectly from treatment of the original injury are also compensable.” Whitfield, supra; Mullinax, 458 S.E. 2d at 79; See also, Shuler v. Gregory Electric, 366 S.C. 435, 622 S.E. 2d 569 (Ct. App. 2005) (Fatal injuries sustained by employee, which “occurred while she was fulfilling her duty to submit to treatment for a previous compensable injury” were likewise deemed compensable.). Additionally, S.C. Code Ann. 42-15-70 (1976) specifically provides that the consequences of malpractice in this context “shall be deemed part of the injury resulting from the accident and shall be compensated for as such.” Hall v. United Rentals, Inc., 371 S.C. 69, 636 S.E. 2d 876, 886 (Ct. App. 2006).

C. PSYCHOLOGICAL/PSYCHIATRIC CONDITION ARISING

FROM PHYSICAL INJURY

The expansive spectrum of “compensability” initially recognized by Whitfield not only extends to secondary and/or indirect physical symptoms/injuries which result from the compensable accident, but also to psychological/psychiatric conditions which stem from the accident or compensable injuries. Kennedy v. Williamsburg County, 242 S.C. 47, 131 S.E. 2d 512 (1963); Bass v. Kenco Group, 366 S.C. 450, 622 S.E. 2d 577, 584 (Ct. App. 2005) (“. . . [A] mental injury induced by a physical injury is compensable.”).

Specifically, in Kennedy, the South Carolina Supreme Court held that a chain gang guard "suffering from a mental condition diagnosed as paranoid schizophrenia" was entitled to permanent and total disability benefits, where: (a) the medical evidence, which was provided by two psychiatrists, established that a head injury which Mr. Kennedy had experienced when attacked by two prisoners most probably caused the mental condition; and (b) circumstantial evidence (in the form of testimony from family members similarly ". . . g[a]ve rise to a reasonable inference that there was a causal connection between the claimant's disability and his prior injury." Kennedy, 131 S.E. 2d, at 512.

Based upon this decision, the Court of Appeals subsequently explained that "if an accident arising out of and in the course of employment results in physical injury or trauma, and additionally, mental injuries are caused by the same accident, " they are compensable under the Act. Doe v. South Carolina State Hospital, 285 S.C. 183, 328 S.E. 2d 652 (Ct. App. 1985) (Claimant, whose mental injury resulted from accidental physical trauma which was compensable per the Act, could not pursue action against employer in tort.); Stokes, 377 S.E. 2d at 926.

Despite these rulings, some degree of confusion remained as to the standard of proof required to establish the compensability of mental injury arising from physical trauma. This point was clarified in Estridge v. Joslyn Clark Controls, Inc., 325 S.C. 532, 482 S.E. 2d 577, 580 (Ct. App. 1997), where the Court of Appeals: (a) held that mental injuries are compensable if "induced either by physical injury. . . or by unusual or extraordinary conditions of employment"; and (b) verified that where "the mental injury is induced by physical injury, it is not necessary that it result from unusual or extraordinary conditions of employment." See also, Doe v. South Carolina Department of Disabilities and Special Needs, 364 S.C. 411, 613 S.E. 2d 785, 790 (Ct. App. 2005); Pack v. Department of Transportation, 381 S.C. 526, 673 S.E.2d 461 (Ct. App. 2009).

Similarly, in Getsinger v. Owens-Corning Fiberglas Corp., 335 S.C. 77, 515 S. E. 2d 104, 105-106 (Ct. App. 1999), the Court: (a) reiterated that there were two independent mechanisms for establishing compensable mental injury (produced by physical injury or resulting from unusual and extraordinary work conditions); and (b) explained that its comments in Stokes v. First National Bank, 298 S.C. 13, 377 S.E. 2d 922-923 ("there is no valid justification. . . for distinguishing between mental disorders resulting from physical injury and. . . [those] brought about by emotional stimuli or stressors which were incident to unusual and extraordinary conditions in employment") did not establish a single/universal requirement for compensability or change the standard of proof for mental injuries induced by physical injury. Doe, 613 S.E. 2d at 790.

Relying on the Estridge decision, the Court of Appeals has further explained/reiterated: (a) “[i]f the mental condition is causally connected to the original injury, is a newly manifested symptom of that injury, and has caused a worsening of the Claimant’s condition, then it is proper for the. . .[Commission} to consider the mental condition at a change of condition hearing”; (b) this rule would apply whether the mental condition was known, but “not…impact[ing] on the claimant’s condition at the time of the original award. . .[or simply] a new symptom manifesting from the same harm to the body” created by the underlying physical injury; (c) “even if the mental condition was not raised at the original hearing, it may be raised at the change of condition hearing”; and (d) a claimant “could raise the issue of depression at the change of condition hearing because the psychological condition was induced by the original physical injury and any symptoms of depression she experienced prior to the …[initial] hearing were mild, undiagnosed, and untreated.” Mungo v. Rental Uniform Service of Florence, Inc., 383 S.C. 270, 678 S.E. 2d 825, 831-32 (Ct. App. 2009).


III. AGGRAVATION OF PRE-EXISTING PHYSICAL CONDITIONS

In many instances, secondary components result from the aggravation of pre-existing conditions and/or pathology by the consequences of the Employee’s primary injury. The frequency of this phenomenon warrants a firm grasp of our Appellate Court’s analysis of this concept.

Recognizing that the weight of authority required inclusion of all disability which was causally related to the compensable injury, the South Carolina Supreme Court long ago ruled that "even where an injury aggravates a pre-existing condition or disease so that the disability is continued for a longer period than would normally result from the injury alone, such disability is nevertheless compensable." Cole v. State Highway Department, 190 S.C. 142, 2 S.E. 2d 490, 492 (1939). (Aggravation of pre-existing varicose veins by compensable leg injury held to be compensable).

Subsequent to the Cole decision, the Supreme Court has expounded upon the concept, to the extent it is now axiomatic "that the aggravation, acceleration, or lighting up of a pre-existing or latent infirmity or weakened physical condition may constitute a disability of such a character as to come within the meaning of . . . [Workers'] Compensation Acts, even though the accident would have caused no injury to a perfectly normal, healthy individual." Ferguson v. The State Highway Department, 197 S.C. 520, 15 S.E. 2d 775, 778 (1941) (blindness resulting from aggravation, acceleration and lighting up of pre-existing syphilitic condition found to be compensable.); Glover v. Columbia Hospital of Richland County, 236 S.C. 410, 114 S.E. 2d 565, 569 (1960) ("[W]here a latent or quiescent weakened, but not disabling, condition resulting from disease is by accidental injury in the course and scope of employment, aggravated, accelerated or activated, with resulting disability, such disability is compensable); Mullinax, 458 S.E. 2d 79; Sharpe v. Case Produce, 329 S.E. 534, 495 S.E. 2d 790, 797 (Ct. App. 1997), rev.'d. on other grounds, 336 S.C. 154, 519 S.E. 2d 102 (1999).

"The same principle is equally applicable where the latent, but not disabling, condition has resulted from a prior accidental injury." Gordon v. E.I. DuPont de Nemours & Co., 228 S.C. 67, 88 S.E. 2d 844, 848 (1955); Wright v. Graniteville Company, 266 S.C. 88, 221 S.E. 2d 777, 779 (1976). When this scenario occurs, compensability is "referable to" the latter injury, rather than the original one, "if the disability is proximately caused by the subsequent accidental injury. . . ." Id. "[I]t is no defense that the accident, standing alone, would not have caused the claimant's condition, because the employer takes the employee as he finds him." Brown v. R.L. Jordon Oil Company, 291 S.C. 272, 353 S.E. 2d 280, 282 (1987); Reed-Richards v. Clemson University, 371 S.C. 304, 638 S.E. 2d 77, 80 (Ct. App. 2006).

In this connection, our Appellate Courts have also determined: (a) "[a] condition is compensable unless it is due solely to the natural progression of a pre-existing condition." Mullinax, 458 S.E. 2d at 79; Sharpe, supra; and (b) these principles are equally applicable to not only mental injuries, but also other claims governed by the extraordinary and unusual standard. See, Anderson v. Baptist Medical Center, 343 S.C. 487, 541 S.E. 2d 526, 528 (2001) ("Aggravation of pre-existing psychiatric problems is compensable if that aggravation is caused by a work-related. . . injury"); See also, Cline v. Nosredna Corporation, Inc., 291 S.C. 75, 352 S.E. 2d 291 (Ct. App. 1986).

However, in the context of injuries arising from heart attack, stroke, occupational stress, etc. (i.e., which do not stem from an acknowledged physical injury), the aggravation must be occasioned by the requisite “unusual or extraordinary conditions of employment. . . .” See, Watt v. Piedmont Automotive, 384 S.C. 203, 681 S.E. 2d 615, 619 (Ct. App. 2009). Similarly, the Court of Appeals has apparently recognized the aggravating element attributable to employment cannot be so “exceedingly common” so as to prevent reasonable correlation with the work activities. See, Ervin v. Richland Memorial Hospital, 386 S.C. 245, 687 S.E. 2d 337, 339 (Ct. App. 2009) (Holding substantial evidence supported denial of respiratory injury linked to perfume exposure).

In addressing the issue relative to the impact of successive injuries, the Supreme Court: (a) rejected the Court of Appeals’ attempt to affirm “the Commission’s finding of inseparability”, which had resulted in an apportionment of liability; and (b) determined the general aggravation doctrine “espoused in Gordon. . . reflects the essence of the last injurious exposure rule which is to hold the insurer on the risk at the time of the second injury solely liable when the second injury aggravates the first injury.” Geathers v. 3V, Inc., 371 S.C. 570, 641 S.E. 2d 29, 34 (2007).

S.C. Code Ann. Section 42-9-35 (2007), which addresses several aspects of the “aggravation” principle, provides:

(A) The employee shall establish by a preponderance of the evidence, including medical evidence that:

(1) the subsequent injury aggravated the preexisting condition or permanent physical impairment; or

(2) the preexisting condition or the

permanent physical impairment aggravates the

subsequent injury.

(B) The commission may award compensation

benefits to any employee who has a permanent physical impairment or preexisting condition and who incurs a subsequent disability from an injury arising out of and in the course of his employment for the resulting disability of the permanent physical impairment or preexisting condition and the subsequent injury. However, if the subsequent injury is limited to a single body part or member scheduled in Section 42-9-30, except for total disability to the back as provided in Section 42-9-30(21), the subsequent injury must impair or affect another body part or system in order to obtain benefits in addition to those provided for in Section 42-9-30.

(C) As used in this section, “medical evidence” means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider.

(D) The provisions of this section apply whether or not the employer knows of the preexisting permanent disability.

(E) On and after the effective date of this section, an employee who suffers a subsequent injury which affects a single body part of member injury set forth in Section 42-9-30 is limited to the recovery set forth in that section.

This statute essentially operates to: (a) require proof a preexisting condition or impairment was aggravated by a compensable injury; (b) alternatively allow benefits in the event the subsequent compensable injury is aggravated by the preexisting condition or impairment; (c) authorize an award of disability compensation to an employee which encompasses “the resulting disability of the permanent physical impairment or preexisting condition and the subsequent injury”; (d) reinforce the Supreme Court’s rulings in Singleton v. Young Lumbar Company, 236 S.C. 454, 114 S.E. 2d 837 (1960) and Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 580 S.E. 2d 100 (2003); (e) require the use of medical evidence in establishing the consequences of any aggravation; and (f) make knowledge of this preexisting condition (by either Employee or Employer) irrelevant.

When Section 42-9-35 is analyzed in light of prior case law, it is clear: (a) the thrust of this amendment is completely consistent with the various principles governing causally related preexisting conditions; (b) disability continues to be assessed in terms of the combined effects of the preexisting/aggravated condition and compensable injury; and (c) the need for medical evidence does not, as a practical matter, materially alter current practice. See, Murphy v. Owens Corning, 393 S.C. 77, 710 S.E. 2d 454 (Ct. App. 2011).