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Burden of Proof for Aggravation of Pre-Existing Condition

J. Steven Rodenberg

In an opinion filed May 13, 2020, the Court of Appeals addressed the claimant’s burden of proof regarding aggravation of a pre-existing condition pursuant to S.C. Code Section 42-9-35.

In Chisolm Frampton v. South Carolina Department of Natural Resources, the Single Commissioner found the claimant failed to meet his burden of proof under S. C. Code Section 42-9-35 to show his subsequent, on-the-job injury aggravated his pre-existing neck condition. Nevertheless, the Single Commissioner found because the employer admitted the claim and provided medical treatment, the claimant was entitled to benefits for permanent partial disability. The Appellate Panel reversed, finding the Single Commissioner’s conclusion that the claimant did not meet his burden of proof was correct and, because it was not appealed, was the law of the case. The Appellate Panel therefore concluded the claimant was not entitled to benefits as a matter of law. The claimant appealed the Appellate Panel’s reversal arguing the Appellate Panel erred in requiring him to prove a compensable injury to his spine after the employer admitted liability.

On September 4, 2010, the claimant experienced neck pain and stiffness after riding in a pickup truck across a bumpy dove field as part of a property inspection for his employer. The claimant reported the incident to his supervisor and went to Doctors Care three days later where he was diagnosed with cervical and trapezius strains. The claimant returned to Doctors Care ten days later after which he was released to work full duty. The workers’ compensation insurance carrier paid for both of those doctor’s visits.

On March 15, 2011, the claimant saw a neurosurgeon because of ongoing neck and arm pain. The neurosurgeon’s records indicated he had treated the claimant before the September 4, 2010 dove field incident and was following the claimant for cervical radiculopathy. The neurosurgeon’s reports described the claimant as having symptoms of neck pain and right arm numbness that had progressed from the study that was done approximately a year prior. The neurosurgeon performed surgery on March 21, 2011.

In June 2011, the claimant was involved in a serious car accident which aggravated his neck pain.

On November 17, 2014, the claimant filed a Form 50 seeking total permanent disability benefits for the injury to his neck and right arm allegedly sustained during the September 4, 2010 dove field accident. In its Form 51, the employer admitted the injury, but also denied any injury to the claimant’s right arm, denied the claimant needed or was entitled to additional medical care as a result of any work-related injury, and claimed the claimant reinjured his cervical spine during the June 2011 motor vehicle accident. The employer did not, however, cite S.C. Code Section 42-9-35 as a specific defense in its Form 51 or pre-hearing brief.

The Court of Appeals noted that although the employer did not raise the issue of whether the claimant met his burden under Section 42-9-35 in its Form 51 or pre-hearing brief, the employer was not on notice of the claimant’s pre-existing neck injury until obtaining the neurosurgeon’s March 2010 medical records shortly before the hearing before the Single Commissioner. Additionally, the claimant did not object to the employer raising this issue at the hearing. The Court of Appeals stated the employer’s initial provision of treatment of the claimant’s injury does not estop it from later contesting liability under the circumstances. Moreover, although the employer admitted an injury to the claimant’s neck on its Form 51, it consistently denied the claimant was entitled to benefits.

The Court of Appeals ultimately found there was substantial evidence supporting the Appellate Panel’s decision. The neurosurgeon’s medical records from March 2010 and the claimant’s own testimony demonstrated the claimant had a pre-existing neck condition at least 6 months before the dove field incident. Section 42-9-35 provides a claimant “shall establish by a preponderance of the evidence” a subsequent work-related injury aggravated a pre-existing condition. In this case, the claimant did not prove the dove field incident aggravated his pre-existing neck condition. Additionally, even if the claimant met his burden pursuant to Section 42-9-35, he did not show his neck injury was proximately caused by the dove field accident pursuant to Section 42-1-160(A). The Court of Appeals found there is substantial evidence supporting the Appellate Panel’s conclusion that the claimant’s treatment with the neurosurgeon, including his surgery, was not causally related to the dove field incident but was part of a long-term, ongoing course of treatment for the claimant’s progressive, degenerative disk disease which had begun years prior.

This opinion does not really establish any new case law, but it does show the Court of Appeals will hold a claimant to the legal requirement of sustaining his burden of proof under the right factual circumstances which is a nice departure from most of the Appellate Court opinions received in the last 18 months or so. So the lesson here is to continue to pursue discovery to obtain documentation of a claimant’s pre-existing health conditions and injuries/problems even up until the date of the Single Commissioner hearing and continue to hold the claimant to his burden of proof.

Live hearings are now being held again by the Commission with strict health and safety precautions in place. In these trying times, please stay strong, healthy, safe, and well and let us know if we can help in any way.