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Cooper v. Dick Smith Motors11/21/2005
Submitted October 1, 2005
REVERSED
Dick Smith Motors and its insurance carrier, S.C. Automobile Dealers Association (collectively "Appellants"), appeal a circuit court order reversing a decision of the Workers' Compensation Commission which held that Lonnie Cooper did not aggravate a pre-existing back problem as a result of an admitted injury to his knee and therefore, that he reached maximum medical improvement for his injuries. We reverse.
FACTS
Lonnie Cooper sustained an admitted injury to his left knee on July 22, 2002 while working as a service technician/mechanic for Dick Smith Motors. The injury occurred when Cooper slipped getting into a vehicle. Cooper first received medical services for the injury at Doctor's Care, where he complained of ankle and knee pain. He was referred to Dr. Bethea, who served as his treating physician.
On March 20, 2003, after approximately 17 visits to Dr. Bethea, and two knee surgeries, Dr. Bethea declared Cooper reached maximum medical improvement for his knee injuries. At that time he stated that Cooper suffered a 25 percent permanent physical impairment of the injured extremity.
On June 5, 2003, Appellants filed a Form 21 seeking to stop compensation for the knee injury and requesting credit for overpayment of temporary benefits. Although Cooper was pro se at this point, he obtained the services of an attorney who filed a pre-hearing brief asserting that Cooper injured his knee and would be seeking all benefits applicable. On July 18, 2003, the attorney also filed a Form 50 requesting further medical treatment for the knee injury and a finding of general disability.
A hearing on Appellants' Form 21 was held before a single workers' compensation commissioner on July 31, 2003. During the pre-trial conference Cooper sought to leave the record open in order to submit the deposition of Dr. Bethea to support his claim that he also injured his back in the accident. The commissioner left the record open for 30 days and on August 28, 2003, the commissioner received Dr. Bethea's deposition and a report by Dr. Poletti. Appellants objected to admission of Dr. Poletti's report and the commissioner sustained the objection, leaving the report in the commission's file as a proffer, but not considering it in rendering a decision.
During the hearing, Cooper testified that although the immediate problem after the accident was his left knee, he also began to experience numbness in his right leg and back pain. Cooper stated that he mentioned the back problems several times to Dr. Bethea, but that the doctor repeatedly told him he needed to take care of one problem at a time. He further testified that he did not receive any treatment for his back or right leg until he returned to Dr. Bethea using his health insurance.
On cross-examination, opposing counsel confronted Cooper by bringing it to his attention that none of the records of Cooper's 17 visits to Dr. Bethea showed any mention of problems with his back or right leg. Cooper responded that he told the doctor of the back pain after five or six visits and was aware that Dr. Bethea did not write anything in his reports concerning the back injury. Also brought out on cross examination was the fact that Cooper's wife knew Dr. Bethea through her employment with a local hospital.
In his deposition, Dr. Bethea testified to the injuries Cooper sustained to his knee and the course of treatment that was followed. Dr. Bethea also testified that treatment was not rendered for Cooper's back problems until three months after the doctor declared Cooper reached maximum medical improvement for his knee injury. He ment
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