S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Albert B. Shealy,
Petitioner,
v.
Aiken County,
Employer/Self-Insured,
Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Aiken County
Rodney A. Peeples, Circuit Court Judge
Opinion No. 25173
Heard June 21, 2000 - Filed July 24, 2000
AFFIRMED AS MODIFIED
Preston F. McDaniel, of McDaniel Law Firm, of
Columbia, for petitioner.
F. Earl Ellis, Jr., and Daniel W. Hayes, both of Ellis,
Lawhorne & Sims, P.A., of Columbia, for respondent.
CHIEF JUSTICE TOAL: Albert B. Shealy ("Shealy") appeals the
Court of Appeals' decision denying workers' compensation benefits for his
psychological injuries allegedly caused by conditions of his employment as a
"deep cover" undercover narcotics agent for the Aiken County Sheriffs
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Shealy v. Aiken County
Department ("Sheriff's Department").
FACTS/PROCEDURAL BACKGROUND
From 1981 to 1990, Shealy worked as a Lexington County deputy sheriff.
Shealy developed depression and an alcohol problem that ultimately led to his
departure from the Lexington County Sheriff's Department in May 1990. He
received treatment for these problems and was alcohol free in November 1990
when he applied for a position in the Sheriffs Department. In November 1990,
Aiken County Sheriff Carroll Heath, who was aware of Shealy's alcohol problem,
hired Shealy to work as a "deep cover" undercover narcotics agent.
The Sheriff's Department hires deep cover agents to go to known drug
locations, typically bars and nightclubs, to befriend drug dealers and other
criminals in order to gain information, intelligence, and make drug buys, which
are handed over to the police as evidence. The goal is for the deep cover agent
to buy as much drugs as he can from the dealers and then slowly disappear.
Deep cover work is extremely stressful and differs from regular police
undercover work because the agent does not wear a wire, is not operating under
police surveillance, does not have access to police back up, and does not carry
police identification. According to Shealy, the stress involved with deep cover
work was "extraordinary, it was more than I ever could imagine."
In August 1992, the Sheriffs Department assigned Shealy to infiltrate
Rambler's Bar and Grill in Aiken because the employees and management were
accused of illegal drug trafficking. Another deep cover agent, Stacey Coleman
("Coleman"), informed Shealy that Tony Kneese ("Kneese"), one of the alleged
drug dealers, suspected Shealy was an undercover officer. According to
Coleman, Kneese planned on taking Shealy "fishing." "Fishing" is a slang term
that means killing someone and then disposing of the body in a pond or lake.
According to Coleman's testimony:
The people were very well capable of committing a crime of murder.
I know there were times he and I both purchased drugs from them
and they were armed when we purchased drugs from them. Yes,
they were very well capable of committing [sic] such as that.
As a way to prove to Kneese that he was not a police officer, Shealy handed
Kneese his pistol and told him to go ahead and kill him if he thought Shealy was
a cop. Although Kneese did not harm Shealy, Shealy still felt he was under a
constant death threat after the confrontation. Shealy was also unable to work
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Shealy v. Aiken County
effectively as a deep cover agent after the confrontation with Kneese. His
condition worsened after the confrontation and he began seeing a psychiatrist,
Dr. Carol O. Kinard.
Shortly after the encounter with Kneese, a new sheriff was elected for
Aiken County. On Christmas Eve 1992, a representative from the Sheriff's
Department informed Shealy that he would be terminated because the new
sheriff intended to eliminate the deep cover narcotics program. According to
Shealy, his dismissal was extremely stressful because he was still under death
threats and he would lose both his permit to carry a weapon and the protection
of law enforcement. On December 30, 1992, Shealy was admitted to Baptist
Medical Center for depression, suicidal thoughts, post-traumatic stress disorder,
and acute alcoholism.
Shealy has worked only sporadically since his release from Baptist Medical
Center. He has been sober since July 1994, when he rejoined Alcoholics
Anonymous. Dr. Kinard treated Shealy for several years and determined Shealy
met the criteria for major depression recurrent, post- traumatic stress disorder,
anxiety, alcoholism, and panic disorder with agoraphobia. In August 1995, Dr.
Kinard indicated Shealy was unable to work in any gainful employment and
would be unlikely to work in the foreseeable future. Dr. Scott, in performing an
independent evaluation for the Social Security Administration, concurred in the
diagnosis.
Although Shealy's job as a deep cover agent contributed to his medical
conditions, Shealy admits to several other stressors in his life that may have
contributed to his illness. In 1992, during the same time as the death threats
and his termination from the Sheriff's Department, Shealy was also seeking a
divorce from his second wife on the grounds of her infidelity, was in a bitter
custody dispute over his son, and was declaring bankruptcy. Relying on these
non-job stressors, the Full Commission made a factual determination that
Shealy failed to meet his burden of proving that the conditions of his
employment as a deep cover agent proximately cause his psychological injuries.
The Single Commissioner awarded Shealy benefits for aggravation of his
preexisting alcoholism and psychological injury resulting from the extraordinary
conditions of his employment. The Full Commission reversed on October 15,
1996. After a remand to the Full Commission for specific findings of facts and
conclusions of law, the circuit court affirmed the Full Commission's decision.
The circuit court found Shealy's job conditions were usual to his employment.
Moreover, the circuit court held Shealy had failed to prove his psychological
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Shealy v. Aiken County
injuries were caused by unusual or extraordinary conditions of employment. The
Court of Appeals affirmed the circuit court's order. Shealy v. Aiken County, Op.
No. 98-UP-573 (S.C. Ct. App. filed December 16, 1998).
The following issues are before this Court on appeal:
1. Did the Court of Appeals err in holding the "unusual or
extraordinary conditions of employment" standard is determined by
reference to Shealy's particular employment and not to employment
in general?
2. Did the Court of Appeals err in finding Shealy's allegation of error
in the reversal of the award for the aggravation of his preexisting
alcoholism was not preserved for review?
3. Did the Court of Appeals err in holding that the issue of whether
medical evidence had to be presented to prove unusual or
extraordinary conditions of employment was not preserved for
review?
LAW/ANALYSIS
The Administrative Procedures Act ("APA") governs this Court's review of
the Full Commission's decisions. See Lark v. Bi-Lo, Inc. 276 S.C.130, 276 S.E.2d
304 (1981). We can reverse or modify the Full Commission's decision in this case
only if Shealy's substantial rights have been prejudiced because the decision is
affected by an error of law or is clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record. See S.C. Code Ann. §
1-23-380(A)(6)(d), (e) (Supp. 1997). Substantial evidence is not a mere scintilla
of evidence nor evidence viewed from one side, but such evidence, when the
whole record is considered, as would allow reasonable minds to reach the
conclusion the Full Commission reached. Waters v. South Carolina Land
Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996).
In workers' compensation cases, the Full Commission is the ultimate fact
finder. Hunter v. Patrick Constr. Co., 289 S.C. 46, 344 S.E.2d 613 (1986). The
final determination of witness credibility and the weight to be accorded evidence
is reserved to the Full Commission. Ford v. Allied Chem. Co., 252 S.C. 561,16 7
S.E.2d 564 (1969). It is not the task of this Court to weigh the evidence as found
by the Full Commission. Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590
(1981).
p. 426
Shealy v. Aiken County
I. Unusual or Extraordinary Conditions of Employment
Shealy argues that under the standard for compensability that applies to
mental-mental injuries, 1 the phrase "unusual or extraordinary conditions in
employment" refers to conditions of employment in general, not to conditions
extraordinary to the particular job in which the injury occurs. The Court of
Appeals held compensability should be determined by unusual or extraordinary
conditions of a complainant's employment. We agree with the Court of Appeals.
However, we find the combination of death threats, gun incidents with violent
drug dealers, high tension confrontations, fear of being uncovered, and loss of
security as a police officer constitutes unusual or extraordinary conditions of
employment when they occur over several months.
In determining whether a work-related injury is compensable, the
Workers' Compensation Act is liberally construed toward the end of providing
coverage rather than noncoverage in order to further the beneficial purposes for
which it was designed. Dickert v. Metropolitan Life Ins., Co., 306 S.C. 311, 411
S.E.2d 672 (Ct. App. 1991). Any reasonable doubt as to the construction of the
Act will be resolved in favor of coverage. Mauldin v. Dyna-Color/Jack Rabbit,
308 S.C. 18, 416 S.E.2d 639 (1992). A compensable injury under the Workers'
Compensation Act is defined by S.C. Code Ann. § 42-1-160 (1985), 2 which states
1 A mental-mental injury is a purely mental injury resulting from
emotional stimuli. See Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248
(1991).
2 On June 18, 1996, section 42-1-160 was amended. Shealy's injury
occurred before the effective date of the amendment. The following two
sections were added to the original statute:
Stress arising out of and in the course of employment
unaccompanied by physical injury and resulting in mental illness or
injury is not a personal injury unless it is established that the
stressful employment conditions causing the mental injury were
extraordinary and unusual in comparison to the normal conditions
of the employment.
Stress arising out of and in the course of employment
unaccompanied by physical injury is not considered compensable if (2 continued...)
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Shealy v. Aiken County
in part:
"Injury" and "personal injury" shall mean only injury by accident
arising out of and in the course of the employment and shall not
include a disease in any form, except when it results naturally and
unavoidably from the accident ....
Mental or nervous disorders are compensable accidental injuries under the
statute when "the emotional stimuli or stressors are incident to or arise from
unusual or extraordinary conditions of employment." Powell v. Vulcan
Materials, Co., 299 S.C. 325, 384 S.E.2d 725 (1989). In Powell, this Court held
that courts should use the "heart attack standard" to determine when a mental
mental injury is compensable. A heart attack suffered by an employee
constitutes a compensable accident if it is induced by unexpected strain or
overexertion in the performance of his duties of employment, or by unusual and
extraordinary conditions in employment. Bridges v. Housing Auth., City of
Charleston, 278 S.C. 342, 295 S.E.2d 872 (1982). However, if a heart attack
results as a consequence of ordinary exertion that is required in performance of
employment duties in an ordinary and usual manner, and without any untoward
event, it is not compensable as an accident. Fulmer v. South Carolina Elec. &
Gas Co., 306 S.C. 34, 410 S.E.2d 25 (Ct. App. 1991). According to this Court in
Powell, the heart attack standard applies to mental-mental injuries:
Mental or nervous disorders resulting from either physical or
emotional stimuli are equally compensable provided the emotional
stimuli or stressors are incident to or arise from unusual or
extraordinary conditions of employment.
Powell, 299 S.C. at 327, 384 S.E.2d at 726; see also Stokes v. First Natl Bank,
306 S.C. 46, 410 S.E.2d 248 (1991).
This Court has never applied an obejective standard of reasonable
(2 continued...) it results from any event or series of events which is incidental to
normal employer/employee relations including, but not limited to,
personnel actions by the employer such as . . . terminations, except
when these actions are taken in an extraordinary and unusual
manner.
S.C. Code Ann. § 42-1-160 (Supp. 1997).
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Shealy v. Aiken County
employment when considering whether a worker was exposed to unusual or
extraordinary work conditions, but rather has compared the conditions to the
worker's particular employment. For example, in Powell this Court held that
"Powell's altercation with his supervisor was an unusual and extraordinary
condition of his employment resulting in a compensable accidental injury."
Powell, 299 S.C. at 328, 384 S.E.2d at 727 (emphasis added). All the factors
considered by this Court in Powell were based upon the claimant's particular
employment, not as compared to objective examples of employment in general. 3
Various states have applied different standards in determining whether
a condition is unusual or extraordinary. Professor Arthur Larson identified three
comparisons used by courts across the country that have specifically addressed
this issue: (1) compare whether the work conditions were unusual to the
employee's normal strains; (2) compare whether the work conditions were
unusual compared to the strains of employment in general; or (3) compare
whether the work conditions were unusual as compared to the everyday wear
and tear of non-employment life. 2 Arthur Larson & Lex K. Larson, Larson's
Workers' Compensation Law § 44.05(4)(d)(i) (1999). According to Professor
3 Accord Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248 (1991)
(holding the prolonged increase in Stokes' work hours and his additional job
responsibilities, as compared to his work hours and responsibilities prior to the
merger, constituted unusual and extraordinary conditions of employment);
Bridges v. Housing Auth., City of Charleston, 278 S.C. 342, 295 S.E.2d. 872 (1982)
(holding there was no showing of unusual or extraordinary conditions of
employment where security patrolman engaged in an investigation of the type
included in his duties during normal working hours and in his regular patrol
area); Black v. Barnwell County, 243 S.C . 531,134 S.E.2d 753 (1964) ("Whether
climbing the stairs by the deceased on the occasion in question constituted an
unusual or extraordinary exertion must be determined in the light of his usual
and normal duties as jailor of Barnwell County."); Fulmer v. South Carolina
Elec. & Gas Co. , 306 S.C. 34, 410 S.E.2d 25 (Ct. App. 1991) (holding automobile
mechanic's heart attack as a result of being unable to get a needed part from the
parts handler was not compensable because it was not unusual or extraordinary
for the mechanic to have difficulty in obtaining parts); DeBruhl v. Kershaw
County Sheriff's Dept, 303 S.C. 20, 397 S.E.2d 782 (Ct. App. 1990) (holding there
was no showing of unusual or extraordinary conditions of employment where the
investigation of a night fatality was not unusual or unexpected for the Sheriff of
Kershaw County).
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Shealy v. Aiken County
Larson, the most familiar application appears to be a comparison to the
claimant's particular employment:
It is quite possible that in many of the cases merely using the
undefined term `unusual' the courts intended to apply the familiar
comparison with the employee's own normal working conditions.
This is by far the most familiar meaning in the heart cases. At the
same time, quite possibly many of the courts simply did not address
their minds to the question of which comparison they were making.
Larson, § 44.05 (4)(d)(i). Larson's analysis further supports the precedent
established by South Carolina case law in applying the standard based upon the
employment of a particular claimant.
Although we agree with the standard applied by the Court of Appeals, we
find there is substantial evidence in the record that indicates Shealy's work
conditions during 1992 were unusual and extraordinary. Over several months
in 1992, Shealy experienced death threats, gun incidents with violent drug
dealers, high tension confrontations, fear of losing his cover, loss of security as
a police officer, and loss of his insurance. Knowing that a specific plot has been
developed for one's murder by people who are willing and able to commit such
a crime is certainly extraordinary. Furthermore, to have knowledge of an
imminent death threat and then be stripped of the protection of the Sheriffs
Department constitutes an extraordinary condition of employment.
This case is analogous to Kearse v. South Carolina Wildlife Resources
Dep't, 236 S.C. 540, 115 S.E.2d 183 (1960), where we held the activities of a
game warden during the week or two preceding his stroke were sufficient to
reasonably support a conclusion that the work conditions were unusual or
extraordinary. Although some of the activities were of the nature usually
performed by the game warden, the combination of late hours, frigid weather,
extreme exertion, and rough terrain, which continued uninterrupted over an
unusual length of time, constituted unusual or extraordinary conditions.
Likewise, gun incidents, death threats, high tension confrontations, and loss of
police security may be typical of a deep cover narcotics agent, but the
combination of these events over several months is extraordinary.
In order for Shealy to recover workers' compensation benefits, he must
prove both: (1) that he was exposed to unusual and extraordinary conditions in
his employment; and (2) that these unusual and extraordinary conditions were
the proximate cause of his mental breakdown. See generally Powell, supra;
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Shealy v. Aiken County
Gambrell v. Burleson, 252 S.C. 98, 165 S.E.2d 622 (1969) (must prove causal
connection between injury and subsequent condition in workers' compensation
cases). The Full Commission made the factual determination that Shealy failed
to meet the burden of proof because outside stressors unrelated to his work
contributed to or caused his injuries. Shealy was suffering from financial
problems that led to bankruptcy; marital problems, including a divorce and a
custody battle over his son; memories of a gun fight and shooting a man during
a previous employment; and the constant stress of fighting alcoholism. Based
on these non-job stressors, we conclude there is substantial evidence in the
record to support the Full Commission's finding.
II. Preservation Issues
Shealy argues the Full Commission erred in reversing the award for
aggravation of his preexisting alcoholism. The Court of Appeals held that
because the issue was not ruled on by the circuit court and no Rule 59(e), SCRCP
motion was made, the issue was not preserved for appellate review. We agree.
The order of the trial court does not address whether the work conditions
aggravated Shealy's alcoholism. In his order the trial judge addressed: (1)
whether Shealy is entitled to compensation under the heart attack exception
outlined in Holley v. Owens Corning Fiberglass Corp., 301 S.C. 519, 392 S.E.2d
804 (Ct. App. 1990); (2) whether the record contained substantial evidence that
the work conditions were unusual to Shealy's employment; and (3) whether
Shealy proved his work conditions were the proximate cause of his injuries. The
trial judge generally stated: "Inasmuch as it does not appear that the
Commission made any errors of law, and it does appear that there is substantial
evidence to support its findings, the order of the South Carolina Workers'
Compensation Commission is affirmed."
We agree with the Court of Appeals that the issue is not preserved
because: (1) the trial judge's general ruling is insufficient to preserve the specific
issue for appellate review; and (2) Shealy did not move to alter or amend the
judgment pursuant to Rule 59(e), SCRCP. See generally Jackson v. Speed, 326
S.C. 289, 486 S.E.2d 750 (1997) (holding issue not preserved for appellate review
where appellants failed to object to the cost issue either at the hearing or in their
motion to alter or amend the order); Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d
122 (1991) (holding that where a trial court does not explicitly rule on an
argument raised, and appellant makes no Rule 59(e) motion to obtain a ruling,
the appellate court may not address the issue).
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Shealy v. Aiken County
Shealy also argues the Commission erred in holding that medical evidence
must be presented to show unusual or extraordinary conditions of employment.
This issue was not preserved for appellate review because it was not ruled upon
by the trial court and no Rule 59(e), SCRCP motion was made. See Jackson v.
Speed, supra; Noisette v. Ismail, supra. Furthermore, as noted by the Court of
Appeals, the Commission did not hold that medical evidence was necessary to
prove unusual and extraordinary conditions of employment, but merely that the
medical evidence Shealy presented was not sufficient evidence to establish
causation. According to the Commission:
The Claimant here has provided insufficient medical evidence to
prove unusual or extraordinary conditions in his employment at
Aiken County as the proximate cause of his current condition. A
review of the medical evidence shows the Claimant was admitted to
Charter Rivers Hospital on February 4, 1989 and his admitting
diagnosis was alcohol dependency, ruling out post-traumatic stress
disorder. At that point he reported a long history of alcohol abuse,
alcohol intoxication, and sedative withdrawal. This evidence shows
the Claimant's disorder pre-dated any admission for the same
aliments in December 1992 and was not related to extraordinary
stressors on the Aiken County job.
(Emphasis added).
CONCLUSION
Based on the foregoing, we AFFIRM the Court of Appeals' decision as
modified.
MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.
p.431