SC Supreme Court Stresses Commission May Not Use Credibility as a Wild Card
Acknowledging that when South Carolina’s Workers’ Compensation Commission makes a credibility determination based on substantial evidence, that credibility finding itself is substantial evidence, and factual findings properly based on such a credibility finding are binding on the appellate courts, the Supreme Court of South Carolina nevertheless reversed the Commission’s denial of a worker’s hearing loss claim on credibility-of-the-worker grounds, finding that the Commission failed to explain how its credibility findings could justify ignoring objective medical evidence of injury and loss of hearing acuity [Crane v. Raber’s Discount Tire Rack, 2020 S.C. LEXIS 33 (Mar. 11, 2020). The decision signals and reiterates that commissioners may not use credibility findings as a safe harbor to avoid critical appellate review.
Background
Crane, a mechanic at the employer’s tire store, sustained injuries when an air hose attached to a tire changer suddenly separated from its fitting, causing an explosion-like sound. Surveillance video showed Crane immediately stepped away from the tire changer and covered his ears with his hands. Crane testified that immediately after the incident, his ears were ringing, he was in pain, and he could not hear. He texted his wife and asked her to pick him up to take him to the emergency room.
The ER physician diagnosed Crane with conductive hearing loss and referred him to an ear, nose, and throat specialist, who saw Crane the next morning. That specialist observed that both of Crane’s eardrums had “perforations.” An audiogram showed Crane had severe sensorineural hearing loss in both ears. One month later, the specialist conducted another hearing test that indicated Crane’s hearing had deteriorated and that he showed “profound hearing acuity loss in both ears.” This specialist referred Crane to the Medical University of South Carolina for an auditory brainstem response test, but Crane’s medical insurance would not cover the test. The Uninsured Employers’ Fund — the employer was uninsured for workers’ compensation purposes — denied the entire claim and thus refused to pay for it, and the commission did not require it. The Supreme Court noted that as of its decision, Crane had not received the test.
Dr. David Rogers — a medical expert Crane retained — examined him and found both of Crane’s eardrums were ruptured. He described a 60 percent tear in the right eardrum and an 80 percent tear in the left. Dr. Rogers diagnosed Crane with permanent and profound bilateral sensorineural hearing loss and concluded his hearing could not be restored by natural means.
After Crane’s initial hearing, but before the commissioner issued a written order, the commissioner permitted Crane to supplement the record with the results of a third hearing test, conducted August 19, 2014, at Carolina Ear Nose and Throat. The audiogram from that test showed Crane suffered from “profound hearing loss” in the right ear and “profound to severe hearing loss” in the left ear. The otolaryngologist who saw him that day noted that Crane “should be considered disabled because of this.”
Hearing Before Commissioner
At the initial hearing, Crane was the only witness. According to the Supreme Court, In her April 30, 2015 order, the commissioner focused almost exclusively on Crane’s credibility, writing, “Claimant’s conduct/presentation at the hearing (including prior to opening the record) was more revealing than the substance of his actual testimony.” The commissioner added, “Claimant’s ‘display’ and evasiveness at the hearing … make me seriously question whether or not there was an actual injury” and “if Claimant had legitimate, causally-related hearing loss he would have felt no need to ‘perform’ at the hearing.”
At another point in the order, the commissioner again referred to Crane’s testimony as an “inconsistent performance,” and stated his acting was “very poor.” She mentioned “other problematic issues,” which, according to the Supreme Court, she did not name. The Supreme Court added that, referring to the surveillance video of the incident as though that evidence obligated her to find some injury, the commissioner found Crane “did sustain an injury to his ears.”
The commissioner denied Crane’s claims for TTD, permanent impairment, and future medical care. The appellate panel affirmed. The court of appeals affirmed the appellate panel as to permanent impairment and future medical care, but reversed as to TTD. The Supreme Court granted Crane’s petition for a writ of certiorari.
Supreme Court’s Findings
The Supreme Court acknowledged that credibility findings were the province of the Commission and not the appellate courts. The Court further acknowledged that on numbers of occasions, the state’s appellate courts had upheld factual findings the Commission made based on its credibility determinations.
The Court stressed, however, that In cases where credibility was not a substantial issue, even a valid credibility finding was not a proper basis for deciding a question of fact. According to the Court, this case illustrated that point. Even if Crane was untruthful in his testimony at the hearing, his claims for future medical care, temporary total disability, and permanent impairment caused by hearing loss were based on objective medical evidence. The opinions of his treating physicians that he suffered from severe to profound hearing loss as a result of his work-related accident were similarly based on objective medical evidence. The Court added that there was little in Crane’s medical records — or anywhere in the record before the Court — that indicated Crane’s credibility reasonably and meaningfully related to whether he actually suffered hearing loss on the day of the work-related incident.
The Court continued that the Commission may not simply recite its finding that a witness is not credible, but must explain the basis for its credibility finding. Then, the Commission must explain how the credibility determination is important to making the particular factual finding.
No Explanation as to How Credibility Could Justify Ignoring Medical Evidence
The Court said that neither the hearing commissioner nor the appellate panel had given any explanation how Crane’s lack of credibility could justify ignoring the medical evidence, or how his credibility even related to whether he suffered hearing loss. The Court repeated that four physicians diagnosed Crane with severe to profound hearing loss. Those diagnoses appeared to have been based on at least two objective observations by the physicians. First, Crane’s eardrums were ruptured, and second, Crane had at least three hearing tests that showed severe to profound hearing loss in both ears. There was no reasonable and meaningful basis upon which to ignore such objective medical evidence.
The Court concluded,
Credibility can be important in resolving factual disputes before the commission. When credibility is a reasonable and meaningful basis on which to make a factual determination, and when there is evidence of sufficient substance to afford a reasonable basis for the credibility finding, we will uphold the commission’s factual determinations on the basis of credibility. However, that was not the case here. The commission erred in denying Crane’s claims for hearing loss based on credibility without explaining any basis on which credibility could justify ignoring objective medical evidence. We remand to a different commissioner for a new hearing. The commissioner must reconsider the date of maximum medical improvement and make de novo findings on Crane’s claims for temporary total disability, permanent impairment, and future medical care based on his alleged hearing loss, head or brain injury, and psychological overlay.