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Clark v. Aiken County Government & South Carolina Property9/12/2005
Heard June 7, 2005
AFFIRMED
This is a workers' compensation case involving an award based on change of condition. The Workers' Compensation Commission found that Joseph Mark Clark, Sr. sustained a change of physical condition resulting in permanent and total disability, and the circuit court affirmed. We affirm as well.
FACTS
The parties stipulated that Clark sustained an injury on July 12, 1999 in an accident arising out of and in the course of his employment with Aiken County. Clark twisted his lower back while attempting to unhook a trailer from a vehicle. The parties also stipulated to an average weekly wage and compensation rate.
In the original proceeding, the single commissioner found Clark reached MMI on January 20, 2000 and that he had sustained a 30% permanent partial disability as a result of the accident. He awarded benefits accordingly. Clark then appealed to the full commission. In his brief to the full commission, he requested, inter alia, that Dr. Martin Greenberg be designated his treating physician "to provide alternative medical treatment."
While the case was pending before the full commission, Clark's pain increased. Clark was seen by Dr. John Downey who, along with Clark's attorney, referred him to Dr. Greenberg. Dr. Greenberg recommended surgery to Clark's back and performed the surgery on July 27, 2001. Clark did not get permission from the County for Dr. Greenberg to treat him or perform the surgery.
On August 10, 2001 the County tendered and Clark in turn accepted payment of the monetary benefits awarded by the single commissioner.
On October 9, 2001, the full commission affirmed the single commissioner's order, adopting verbatim his findings of fact and conclusions of law. The full commission did not address the issue of whether Clark's condition had changed since he reached MMI, nor did the full commission address the request in Clark's brief that Greenberg be appointed his treating physician.
The surgery successfully alleviated Clark's pain for about four to six months. Then the pain returned, although it was not as severe. After examining Clark again, Dr. Greenberg determined that Clark was permanently vocationally disabled. Clark has not worked since March of 2000 when the County retired him based on disability.
In January 2002, Clark filed a Form 50 claiming a substantial change of condition. The single commissioner concluded that Clark sustained a worsening of his condition and had an impairment of more than 51% to his back. The single commissioner further concluded that the change in physical condition occurred after August 14, 2001. Accordingly, he awarded Clark benefits for total and permanent disability. The single commissioner also specifically found that the treatment by Dr. Greenberg was "necessary, reasonable and was an attempt to lessen [Clark's] disability." He ordered the County to pay for all past and continuing treatment provided to him.
The County appealed to the full commission, which again affirmed, adopting the findings and conclusions of the single commissioner. The circuit court also affirmed. This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act governs judicial review of a decision of an administrative agency. S.C. Code Ann. ยงยง 1-23-310 to 400 (Supp. 2004). Section 1-23-380(A)(6) establishes the substantial evidence rule as the standard of review. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134, 276 S.E.2d 304, 306 (1981). Under this standard, a reviewing court may reverse or modify an agency decision based on errors of law, but may only reverse or modify a
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