Colonna v. Marlboro Park Hospital

Citations: 404 S.C. 537; 745 S.E.2d 128Docket: Appellate Case No. 2011-196407; Nos. 5117

Court: Court of Appeals of South Carolina; April 17, 2013; South Carolina; State Appellate Court

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Loida Colonna appealed the circuit court's affirmation of the Appellate Panel of the Workers’ Compensation Commission's (the Commission) decision regarding her workers' compensation claims. Key points of her appeal included: (1) the Commission's determination that her recovery was limited to scheduled disability under section 42-9-30 rather than total disability under section 42-9-10; (2) the finding that she did not suffer from any additional permanent partial disability; (3) the conclusion that she had reached maximum medical improvement (MMI); and (4) the failure to hold Marlboro Park Hospital responsible for the lifetime maintenance of her implanted spinal cord stimulator. 

Colonna sustained a compensable right ankle and foot injury on February 21, 2004, while working as a geriatric nurse and subsequently experienced ongoing pain, leading to her cessation of work. After initial treatments and a hearing in 2005, the single commissioner found she had not reached MMI and was entitled to additional benefits. Following surgery in May 2005 and further evaluations, including an impairment rating from Dr. Mark Easley, the single commissioner concluded in 2007 that Colonna had reached MMI, sustained a 50% permanent partial disability, and was entitled to related medical treatment. Marlboro Park was granted a credit for overpayments against her award. Colonna later filed a change of condition claim due to ongoing issues, which led to a second surgery authorized by Marlboro Park. Dr. Easley assessed her MMI for the right ankle and foot in July 2008 with a 35% impairment rating. The Commission upheld all findings, and Colonna did not appeal the 2007 order. The court ultimately affirmed the Commission's decision.

Colonna received medical treatment from Dr. Sonia Pasi at Duke University Medical Center, who diagnosed her with Reflex Sympathetic Dystrophy (RSD) linked to her compensable right foot and ankle injury. In August 2008, Dr. Pasi implanted a trial spinal stimulator, followed by a permanent spinal cord stimulator in December 2008 after a successful trial. By March 2009, Dr. Pasi assessed Colonna as being at Maximum Medical Improvement (MMI) for her right leg and foot. An April 2009 functional capacity evaluation (FCE) indicated she could work at a light physical demand level but noted signs of symptom exaggeration.

Marlboro Park filed a Form 21 to cease temporary total disability benefits, claiming a need for a determination on permanent impairment and a credit for overpayments. Colonna countered with claims of additional injuries and sought further medical treatment. During the proceedings, she testified about her limitations due to chronic pain and inability to perform daily activities, relying on Social Security disability benefits.

After a hearing, the single commissioner ruled that Colonna did not prove compensable injuries to her other body parts, confirmed she reached MMI for her foot and ankle, and allowed Marlboro Park to stop temporary benefits. The Commission upheld this decision. Colonna appealed, and the case was transferred to the circuit court, which affirmed the Commission's findings. It ruled that the spinal cord stimulator surgery did not count as a separate back injury, that prior decisions on her psychological condition barred further claims on appeal, and that she was limited in recovery under section 42-9-80 to her single scheduled injury, with no additional permanent partial disability found. Colonna was confirmed entitled to ongoing medical treatment as recommended by Dr. Pasi, including maintenance for her spinal cord stimulator. An appeal followed.

The South Carolina Administrative Procedures Act (APA) outlines the standard of review for appeals from administrative agency decisions. Under the APA, appellate courts cannot replace the agency's judgment regarding factual evidence but can reverse decisions due to legal errors. A court may overturn an agency's findings if they are "clearly erroneous" based on the substantial evidence in the record, which is defined as evidence allowing reasonable minds to reach the agency's conclusion.

Colonna seeks a permanent total disability award under Section 42-9-10, claiming her work-related injuries impacted multiple body parts, thus meeting the "two-body part" rule. She argues that the spinal cord stimulator implantation affected her back and that her right foot/ankle injury exacerbated her preexisting psychological issues. South Carolina law provides three disability compensation methods: total disability under Section 42-9-10, partial disability under Section 42-9-20, and scheduled disability under Section 42-9-30. The scheduled method is applicable when injuries are confined to specific body parts unless additional body parts are affected.

The precedent in Singleton v. Young Lumber Company establishes that claimants with a scheduled member injury are limited to Section 42-9-30 compensation unless they can demonstrate additional injuries. Colonna's assertion that her back injury qualifies for additional compensation under Section 42-9-10 is contested, as her argument relies on the notion that her back was impacted by the spinal cord stimulator necessitated by her ankle injury. The crux of the determination hinges on whether her initial injury indeed had a significant disabling effect on other body parts.

No South Carolina case specifically addresses whether the implantation of a spinal cord stimulator qualifies as an indirect injury to the back. A review of relevant cases indicates that a claimant must demonstrate that an additional body part was impaired or injured due to the treatment device for section 42-9-10 to apply. If the injury is limited to a scheduled member without affecting other body parts, the claimant is entitled only to scheduled compensation. The Singleton ruling emphasizes that 'impairment' involves physical deficiencies, and benefits can extend beyond scheduled injuries if additional injuries can be shown.

Colonna’s argument is deemed flawed as she did not prove that the spinal cord stimulator implantation injured her back or caused further impairment. The circuit court concluded that the spinal cord stimulator was solely intended to improve function in her right leg, not to treat her spine. Without evidence of related symptoms or impairments in the spine, it does not qualify as 'affected' under the Act, thus no other body parts, including the back, were impacted by her work injury or subsequent treatment. 

The evidence supports the circuit court's finding that Colonna did not suffer additional back injury from the spinal cord stimulator. Medical notes document her pain complaints but confirm she was only diagnosed with RSD in her lower limb, and her spine was stable with normal range of motion. Although Colonna’s testimony suggested limitations post-implantation, conflicting evidence must defer to the Commission's factual determinations.

Regarding her preexisting psychological injury, Colonna claims entitlement to benefits under section 42-9-10 due to aggravation from her injury. However, psychological claims are compensable only if proven to be caused by a physical injury or extraordinary employment conditions, a standard she did not meet according to relevant case law.

In the 2005 Order, the single commissioner determined that Colonna experienced aggravation of pre-existing psychological issues due to an injury but did not establish that her need for psychological treatment was entirely attributable to the accident. In the 2007 Order, Colonna acknowledged she did not sustain a compensable psychological injury as previously ruled, which the commissioner cited as a reason that the issue of compensability for psychological injuries was not before him. Colonna did not appeal this ruling, making it law of the case, as established in ML-Lee Acquisition Fund, L.P. v. Deloitte, Touche, meaning it should not be revisited by the appellate court. Consequently, the court found that the question of compensability related to her preexisting psychological issues and their classification as a second injury under section 42-9-10 was not appropriate for consideration.

Colonna also argued that the circuit court incorrectly denied her benefits under section 42-9-10, asserting entitlement to recover under the statute providing the greatest benefits. However, the court disagreed, clarifying that while an injured employee can choose between general disability statutes (sections 42-9-10 and 42-9-20) and the scheduled member statute (section 42-9-30) to maximize recovery, the scheduled recovery is exclusive when a loss does not involve complications to other body parts. The court emphasized that Colonna's ability to recover under section 42-9-10 depended on her proving an additional injury or impairment to another body part, which she failed to do.

Regarding her claim for additional permanent partial disability benefits for her left leg and back, Colonna only referenced her "right lower extremity" in the circuit court's order, which limited her recovery to the compensable injury sustained to her right ankle/foot. Thus, the court concluded that Colonna was not entitled to the additional benefits she sought.

Colonna's entitlement to additional permanent partial disability benefits related to her left leg and back was not addressed by the commissioner, the Commission, or the circuit court, resulting in the issue being unpreserved for appellate review. An issue must be raised and ruled upon at the lower level to be considered on appeal, as established in Pratt. Although Colonna may have intended to reference her right ankle/foot injury, sufficient evidence supported the circuit court's decision to uphold the Commission regarding this issue. Colonna had previously received permanent partial disability benefits for her right ankle and foot, with her impairment rating decreasing from 40% to 35% between surgeries in 2005 and 2007, suggesting a potential decrease in disability. Dr. Pasi did not assign an impairment rating for Colonna’s RSD, and after her spinal cord stimulator surgery, he deemed the procedure successful and indicated she had reached maximum medical improvement (MMI) for her right leg and foot pain by March 18, 2009. Consequently, Colonna did not prove the necessary facts for additional disability benefits as outlined in Smith v. Michelin Tire Corp.

Regarding MMI, Colonna contended that the circuit court erred in affirming the Commission's decision that she had reached MMI. MMI signifies that no further treatment will reduce impairment, a determination left to the Commission’s discretion. Colonna admitted she had attained MMI for her right ankle and foot but claimed she had not been medically cleared for her back injury linked to the spinal cord stimulator surgery. Nonetheless, the court found substantial evidence indicating Colonna did not have a compensable back injury, making a finding of MMI for the back unnecessary for terminating her temporary total disability benefits. The MMI determination was only required for her right ankle and foot injury, which was supported by medical opinions from Dr. Easley and Dr. Pasi. Dr. Pasi's follow-up notes indicated no back pain post-surgery and stable spine conditions, reinforcing the court's conclusion that the termination of benefits was appropriate even though the Commission could still provide further medical treatment as needed.

In Dodge v. Bruccoli, Clark, Layman, Inc., the court established that an employer can be liable for a claimant's future medical treatment if it alleviates their disability period, even after the claimant has returned to work and reached Maximum Medical Improvement (MMI). The case of Cranford v. Hutchinson Constr. affirmed that a finding of MMI was appropriate when a treating physician indicated that medication could relieve the claimant's symptoms without further improvement in their condition. Scruggs v. Tuscarora Yarns, Inc. supported the conclusion that substantial evidence could justify a finding of MMI, despite ongoing physical therapy. Consequently, the circuit court affirmed that Colonna reached MMI and was no longer entitled to temporary total benefits.

Colonna's argument for lifetime maintenance of her spinal cord stimulator was not addressed, as the issue was uncontested; Marlboro Park acknowledged the entitlement to ongoing medical treatment for her right ankle/foot, including the stimulator maintenance. The court noted that concessions from parties negate the need to discuss those issues on appeal.

The document also referenced Mizell v. Glover's definition of Reflex Sympathetic Dystrophy (RSD) and Colonna's citation of Haley v. ABB, Inc. to argue that her spinal cord stimulator implantation proved an indirect back injury. However, the court found Haley distinguishable since that case involved severe back pain from an unsuccessful procedure, which was linked to the compensable injury, while Colonna failed to demonstrate a similar connection between her initial injury or surgery and her back pain.

Finally, Colonna attempted to differentiate her current appeal from previous findings regarding her psychological injury, arguing that the aggravation of pre-existing psychological issues should warrant compensation under section 42-9-10. However, the court concluded that if her preexisting mental injury is deemed non-compensable by law, it cannot constitute an "affected" or injured member for the purposes of triggering benefits under the same section.