Court of Appeals Reverses Commission’s Order that Claimant did not have Radiculopathy


The S.C. Court of Appeals reversed the hearing commissioner, and appellate panel, and concluded that an injury to a claimant caused radiculopathy (contrary to the Commission’s finding), and therefore claimant could pursue a wage loss claim. Beckman v. Sysco Columbia and Gallagher Bassett Svcs. (Opinion No. 5205 (3/19/14)). In light of that ruling, the Court declined to address whether the sacroiliac joint was part of the back.

FACTS: Claimant was injured while loading a hand truck. His Form 50 alleged injuries to his back, buttocks, both legs and right foot. Dr. Zgleszewski assigned a 10% impairment to claimant’s back and spine and 5% impairment to his sacroiliac joint (SI joint), for a combined 15% impairment rating. Dr. Boyd assigned an impairment rating of 8% to the spine. At the hearing, Claimant asserted the injury affected his back, and his legs, through radiculopathy, and therefore he was entitled to make a wage loss claim. The employer alleged Claimant was limited to a single-member injury to the back. The single commissioner agreed with the employer, holding Claimant was entitled to 35% loss of use of the spine, and that the greater weight of the evidence established that only the back was affected by the injury. The appellate panel affirming, agreed with the single commissioner’s finding that there was no objective evidence for radiculopathy, and Dr. Zgleszewski diagnosed radiculitis based on claimant’s subjective complaints. Claimant appealed to the Court of Appeals.

The familiar standard of review on appeal provides that an appellate court must affirm the Commission if there is substantial evidence to support the Commission’s finding of facts. Substantial evidence is evidence that, in viewing the record as a whole, would allow reasonable minds to reach the same conclusion the appellate panel reached. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.

The Court of Appeals first declined to address whether the SI joint was a part of the back for workers’ compensation purposes, concluding it was unnecessary. The Court then reviewed the following evidence in support of its conclusion:

An EMG/NCS did not reveal radiculopathy in either leg. Dr. Zgleszewski’s notes indicated that EMG/NCS can be an imperfect diagnostic tool for determining radiculopathy. Dr. Zgleszewski’s notes included a diagnosis of radiculitis. The notes reflected that claimant complained of pain that radiated to his left buttock and left hip. Physical examination notes indicated “tightness noted in the left piriformis[1] muscle today. There is tenderness over the bilateral PSIS’s[2]. There is a positive Fortin Finger test bilaterally[3]. Neural tension signs are positive in the left leg and the seated slump position.” These comments regarding neural tension signs and complaints of pain were repeated in Dr. Zgleszewski’s notes thereafter. His notes also included the statement “there is tenderness over the left greater trochanter,” and “there is tightness noted in the left piriformis and gluteal muscle.” Finally, Dr. Zgleszewski’s statement to the Commission dated September 2, 2011, stated claimant suffered from “SI, lumbar disk injury & radiculopathy.”

In summary, the Court of Appeals overruled the Commission’s fact finding that claimant did not have radiculopathy, based primarily on claimant’s testimony, and notes in the physician’s reports. It is reasonable to expect the Employer and Carrier will petition for a writ of certiorari to the S.C. Supreme Court.

[1] The piriformis muscle originates from the anterior part of the sacrum, the part of the spine in the gluteal region, and from the superior margin of the greater sciatic notch (as well as the sacroiliac joint capsule and the sacrotuberous ligament). It exits the pelvis through the greater sciatic foramen to insert on the greater trochanter of the femur.
[2] Posterior superior iliac spine
[3] A test was used that can be used to identify pain caused by sacroiliac joint dysfunction


Topics:  Bodily Injury, Wage and Hour, Workplace Injury

Published In: Civil Procedure Updates, Worker’s Compensation Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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