Opinion
Opinion No. 2099.
Submitted October 4, 1993.
Filed December 6, 1993.
Appeal from Beaufort County Jackson V. Gregory, Circuit Court Judge
AFFIRMED IN PART, REVERSED IN PART
Terri Morrill Lynch, of Charleston, for appellants.
Philip L. Fairbanks, of Beaufort, for respondent.
This is a worker's compensation case. Emily Fox suffered injuries in May, 1990, when she was attacked by a guest of Fox's employer, Econolodge. Fox sought benefits under the Workers' Compensation Act, including disability or treatment for alleged post traumatic stress disorder associated with her physical injuries.
At the initial hearing in April, 1991, the single commissioner awarded Fox a weekly wage and compensation rate. After a second hearing in June, 1991, the single commissioner found that Fox reached maximum medical improvement in May, 1991, that she suffered a ten percent (10%) disability to her back, and that she was not entitled to any additional benefits for mental injuries. Fox appealed to the full commission, contesting the amount and rate of her weekly benefits and the finding that she had reached maximum medical improvement and that she was not entitled to any additional benefits.
Prior to the hearing before the full commission, Fox sought to submit updated medical reports showing that she had suffered more severe and different psychological symptoms from the accident since her hearing before the single commissioner. The full commission refused to consider these new reports. Thereafter, the commission issued an order affirming the single commissioner. Fox then filed a petition for judicial review in circuit court. The circuit court affirmed the average weekly wage and compensation rate award, reversed the finding that additional evidence could not be presented, and reversed the finding that Fox was not entitled to additional benefits other than for the ten percent loss to the use of her back. Econolodge appeals so much of the circuit court's order as reversed the full commission's order. We affirm in part and reverse in part.
I.
Econolodge contends the circuit court erred in reversing the full commission's finding that Fox had reached maximum medical improvement by May 30, 1991, and that she did not qualify for compensation for mental disability.
A reviewing court will not disturb the findings of the Workers' Compensation Commission if its findings are supported by substantial evidence on the record as a whole. Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981); S.C. Code Ann. § 1-23-380 (g) (1986). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the commission's finding from being supported by substantial evidence. Camp v. Spartan Mills, 302 S.C. 348, 396 S.E.2d 121 (Ct.App. 1990).
The commission had before it the medical report of Dr. Joseph D. Thompson, an orthopedic surgeon, who concluded that as of March 7, 1991, Fox had reached maximum medical improvement, that she needed no further treatment, and that she could return to normal activities. The record also contained the report of Dr. Dyana Lowndes-Rosen, a psychiatrist, who evaluated Fox on May 30, 1991. Dr. Lowndes-Rosen reported that Fox's emotional condition would be improved by returning to work as soon as possible. She did not find Fox's symptoms sufficient to support a diagnosis of post traumatic stress disorder.
Although it is clear Fox had emotional problems (in part due to psychological limitations unrelated to her accident), there was evidence from which a reasonable fact finder could conclude she was able, both physically and psychologically, to return to work. Therefore, the circuit court erred in reversing the commission's finding that Fox was not entitled to additional benefits beyond compensation for temporary disability and a ten percent loss of use of her back. See Hanks v. Blair Mills, Inc., 286 S.C. 378, 335 S.E.2d 91 (Ct.App. 1985) (court may not substitute its judgment as to the weight of the evidence for that of the Workers' Compensation Commission); DeBruhl v. Kershaw County Sheriff's Dept., 303 S.C. 20, 397 S.E.2d 782 (Ct.App. 1990) (commission, not the court, is finder of fact in a workers' compensation proceeding).
II.
Econolodge also argues the circuit court erred in reversing the commission's decision not to receive new evidence of Fox's mental condition before it heard her case.
Fox petitioned the full commission to accept two additional documents into evidence regarding her mental condition. The first was a report dated December 27, 1991, by Dr. K. Andra Larson, a psychiatrist who evaluated Fox on October 2, 1991. The second document was a report dated January 6, 1992, by Sue E. Shealy, a psychiatric social worker involved in Fox's treatment. These reports came after the single commissioner heard the case, but prior to the hearing before the full commission. The commission denied Fox's petition.
The commission's regulations provide:
When additional evidence is necessary for the completion of the record in a case on review the Commission may, in its discretion, order such evidence taken before a Commissioner.
25A S.C. Code Ann. Regs. 67-707 A (1990). These regulations further provide:
The moving party must establish that the new evidence is of the same nature and character required for granting a new trial and show:
(1) The evidence sought to be introduced is not evidence of a cumulative or impeaching character but would likely have produced a different result had the evidence been procurable at the first hearing. . . .
25A S.C. Code Ann. Regs. 67-707 C (1990).
A party is entitled to a new trial based on after discovered evidence if he can demonstrate: 1) the evidence is such as will probably change the result if a new trial is granted; 2) it has been discovered since the trial; 3) it could not have been discovered before the trial by the exercise of due diligence; 4) it is material to the issue; and 5) it is not merely cumulative or impeaching. Bettis v. Busbee, 283 S.C. 502, 323 S.E.2d 536 (Ct.App. 1984).
Econolodge argues the evidence Fox sought to introduce was not newly discovered evidence, because it was developed after the hearing before the single commissioner. It contends Fox should have presented the new evidence in a proceeding for review pursuant to S.C. Code Ann. § 42-17-90 (1976). That section provides the commission may, upon the application of a party, review an award on the ground of change of condition and may increase the compensation previously awarded. Because Fox did not proceed under section 42-17-90, Econolodge argues she has not exhausted her administrative remedies as required by section 1-23-380 and cannot challenge the commission's refusal to allow the new evidence.
Section 42-17-90 applies to those cases where compensation has been paid, the award approved, and the case closed. Cole v. State Highway Department, 190 S.C. 142, 2 S.E.2d 490 (1939). It permits the commission to reopen the case on the ground of change in the employee's condition occurring after the original award. Cromer v. Newberry Cotton Mills, 201 S.C. 349, 23 S.E.2d 19 (1942). On the other hand, when additional evidence is necessary to complete the record in a case pending before the commission or on judicial review under the Administrative Procedures Act, the evidence may be taken before the commission or a single commissioner. See S.C. Code Ann. § 1-23-380 (e) (1986); 25A S.C. Code Ann. Regs. 67-707 A (1990).
In this case, Fox was not required to proceed under section 42-17-90. Her case was still pending before the commission. There had been no initial award and her case had not been closed. The evidence she sought to introduce was necessary to complete the record and met the test for admission of after discovered evidence. As the circuit court held, the evidence was material to a determination of Fox's workers' compensation benefits, it was likely to have produced a different result before the single commissioner and the full commission, it was discovered after the hearing before the single commissioner, and it could not have been discovered prior to the hearing before the single commissioner, and it was not merely cumulative or impeaching. Because, as a matter of law, it was admissible after discovered evidence, the commission abused its discretion by refusing to receive and consider it. Accordingly, the circuit court committed no error in remanding Fox's case to the commission for the taking of additional evidence on her claim for compensable psychological injuries arising from her work related accident.
AFFIRMED IN PART, REVERSED IN PART.
SHAW and CONNOR, JJ., concur.