THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

William Butts, Appellant,

v.

C.R. England Trucking and Cambridge Integrated Services Group Inc., Defendants,

Of Whom C.R. England Trucking is the Respondent.

Appeal From Colleton County
�John C. Few, Circuit Court Judge

Unpublished Opinion No.� 2008-UP-064
Heard December 11, 2007 � Filed January 22, 2008

REVERSED AND REMANDED

E. Courtney Gruber and R. Walter Hundley, both of Charleston, for Appellant.

Clarke W. McCants, III, of Aiken, for Respondent.

PER CURIAM:� William Butts appeals a circuit court order affirming the South Carolina Workers� Compensation Commission�s determination that Butts was not totally and permanently disabled after suffering a work-related injury.� The essence of Butts� appeal is that the combined effects of his pre-existing psychological condition and his subsequent injury resulted in a greater disability than he would have experienced from the injury alone, resulting in his inability to work and complete disability under S.C. Code Ann. � 42-9-400 (1985 & Supp. 2006).� In light of the recent decision from our supreme court in Ellison v. Frigidaire Home Products, 371 S.C. 159, 638 S.E.2d 664 (2006), we agree with Butts that the Commission imposed an inappropriate legal standard in evaluating the effects and relationship of his pre-existing injury to his subsequent work-related injury.� Accordingly, we reverse and remand to the circuit court, which shall remand the matter to the Commission with instructions to consider Butts� claim under the Ellison standard.�

I.

William Butts sustained an admitted workers� compensation injury to his lower back on November 7, 2000 while working for C.R. England Trucking as a truck driver.� According to Butts, he heard a snap in his back when he picked up a pallet while working on a long-distance trucking assignment.� England Trucking paid some of Butts� medical bills and also paid him temporary compensation for the back injury.� Butts thereafter contended his back injury aggravated his pre-existing psychological condition of post-traumatic stress disorder.[1]� Butts alleged he was permanently and totally disabled as a result of the combined effects of his accident and psychological condition and sought lifetime medical benefits.���

In an order filed March 4, 2003, the single commissioner found Butts had lost more than fifty percent of the use of his back as a result of the accident, in combination with his pre-existing arthritis, and that the accident had aggravated his pre-existing post-traumatic stress disorder.� The single commissioner found Butts was permanently and totally disabled and ruled he was entitled to lifetime medical benefits.�

England Trucking sought review of the single commissioner�s order by the Commission.� In a decision filed January 13, 2004, the Commission found Butts had suffered an injury to his lower back, but reversed the single commissioner�s determination that the injury resulted in the aggravation of a pre-existing psychological condition.� The Commission found Butts was entitled to compensation for a ten percent, permanent, partial disability to his lower back as a result of the accident.� ��

Butts appealed to the circuit court, which remanded the matter to the Commission �to state with specificity the evidence upon which its decision is based.�� The circuit court stated there was evidence in the record which �clearly� supported the original finding of the single commissioner that Butts suffered from post-traumatic stress disorder, which �both pre-existed and was aggravated by the work-related accident.�� The circuit court observed that neither England Trucking nor the Commission had cited to any specific medical evidence to support the findings of the Commission regarding Butts� claim.� ��

Upon remand, the Commission issued an order filed March 15, 2005 that more fully set forth the reasons for its decision.� The Commission found Butts sustained an injury to his back as a result of a work-related accident, but that Butts �did not sustain any other permanent injury to any other part of his body as a result of the accident . . . and did not sustain any psychological injury, or aggravation to a pre-existing psychological condition as a result of said accident.�� The Commission further found that Butts �suffered from significant psychological and physical problems which existed before the accident in this case� and �that any inability of [Butts] to engage in any employment activities is not due to any injury sustained by him while working for [England Trucking].����

The Commission awarded Butts benefits for a ten percent, permanent, partial disability to his lower back pursuant to S.C. Code Ann. � 42-9-30 (1985 & Supp. 2006), the scheduled injury statute, and authorized payment for all causally related and authorized medical treatment for the injury to his lower back.� Butts sought a review of this decision.� The circuit court, with a different judge presiding, upheld the decision of the Commission by order filed July 20, 2006.� Butts appeals.

II.

In this case we are presented with conflicting views on the appropriate scope of review.� Butts contends the Commission applied the wrong legal standard in denying his claim that he was totally disabled.� He further contends the circuit court improperly found substantial evidence supported the Commission�s determination because application of the wrong legal standard affected the Commission�s determination.� In contrast, England Trucking argues the Commission�s fact-based determination should not be reversed because it is supported by substantial evidence.�

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions of the Commission.� West v. Alliance Capital, 368 S.C. 246, 628 S.E.2d 279 (Ct. App. 2006).� Under the APA, an appellate court may reverse or modify the decision of the agency if the agency�s findings, inferences, conclusions, or decisions are affected by an error of law or are clearly erroneous in view of the substantial evidence in the whole record.� Id.; see also S.C. Code Ann. � 1-23-380 (Supp. 2006).� Substantial evidence is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion reached by the Commission.� Rodney v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996).� The possibility of drawing two inconsistent conclusions from the evidence does not mean the agency�s conclusion is unsupported by substantial evidence.� Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590 (1981).

�Conversely, where the Commission�s decision is controlled by an error of law, this court�s review is plenary.�� Lizee v. South Carolina Dep�t of Mental Health, 367 S.C. 122, 126, 623 S.E.2d 860, 862 (Ct. App. 2005).� An appellate court may reverse the Commission when its decision is affected by an error of law.� Callahan v. Beaufort County Sch. Dist., 375 S.C. 92, 651 S.E.2d 311 (2007).

III.

On appeal, Butts contends the circuit court erred in ruling there was substantial evidence to support the Commission�s findings (1) that Butts did not sustain a psychological injury or the aggravation of a pre-existing psychological problem as a result of his work-related accident, and (2) that Butts� inability to sustain gainful employment was not due to any work-related injury.� He further asserts the combined effects of his pre-existing psychological condition and his subsequent injury resulted in a greater disability than he would have experienced from the injury alone, resulting in his inability to work and complete disability under the legal standard recently set forth in Ellison v. Frigidaire Home Products, 371 S.C. 159, 638 S.E.2d 664 (2006).� He asserts the application of an inappropriate legal standard affected the Commission�s determination and thus constituted an error of law.

In reversing the single commissioner�s award, the Commission stated records from the Department of Veteran Affairs noted Butts had �reported symptoms of PTSD, including depression, loss of sleep, loss of interest in pleasurable things, loss of energy, loss of concentration, increased appetite and suicidal ideation, and that he �has been getting progressively worse for roughly four years.��� The Commission observed this note was prepared two weeks after Butts� injury and makes no reference to any physical injury he sustained while working for his employer.�

The Commission also noted Dr. E. Selman Watson, who evaluated Butts at the request of England Trucking, had found Butts� emotional condition followed a slow and insidious course that had been building before the accident.� The Commission stated, �Dr. Watson is further of the opinion that while the accident may have contributed to the Claimant�s decline, other medical ailments suffered by the Claimant, and which pre-date the accident involved here, may have also served to threaten his livelihood.�� ��

The circuit court summarily noted �there is strong evidence to support the Commission�s finding[] that [Butts�] pre[-]existing psychological condition was not aggravated by the injury to his lower back.�� The circuit court stated there was evidence cited by the Commission that Butts suffered from psychological and physical problems prior to his accident and that he had applied for work since the date of his accident.� ���

On appeal Butts cites Ellison, in which our supreme court held �[t]here is no requirement that the pre-existing condition aggravated the injury, or that the injury aggravated the pre-existing condition, so long as there is a greater disability simply from the �combined effects� of the injury and the pre-existing condition.�� 371 S.C at 164, 638 S.E.2d at 666.� In that case, Ellison fractured his leg, causing a twenty percent disability.� Id. at 161, 638 S.E.2d at 665.� The court held Ellison�s pre-existing physical conditions, including hypertension, sleep apnea, prostate cancer, diabetes, and congestive cardiac disease, were properly considered to determine that Ellison was entitled to permanent and total disability benefits because he was physically unable to work after his accident.� Id.�

Our supreme court further noted in Ellison that the proper section to apply was not the scheduled injury statute found at S.C. Code Ann. � 42-9-30 (1985 & Supp. 2006), but rather, the general disability statute, id. � 42-9-400(a) (1985), which provides in pertinent part as follows:�

If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation and medical benefits provided by this Title; but such employer or his insurance carrier shall be reimbursed from the Second Injury Fund . . . .� (Emphasis added.)[2]

Relying upon Ellison, Butts contends the Commission�s �finding that [he] did not suffer any psychological injury or aggravation of a pre[-]existing psychological problem as a result of [his work-related] accident . . . was not supported by the substantial evidence in the record.�� He further contends that, �to the extent . . . the . . . findings are predicated upon a requirement that the pre[-]existing condition have been aggravated by the work-related accident, those findings are erroneous as a matter of law, in that they are not consistent with the [South Carolina] Supreme Court holding in Ellison v. Frigidaire Home Products.������

Butts further asserts that �[t]he substantial evidence in the record supports a finding that [he] sustained a physical injury as a result of a work-related accident which, when combined with the pre[-]existing mental illness, rendered him incapable of continuing to work as a long distance truck driver, and therefore, rendered him permanently incapable of performing gainful employment.�  England Trucking presents a different take on the evidence and argues application of the Ellison standard does not affect the result reached by the Commission because �[t]he substantial evidence here shows that the injury to Mr. Butts� lower back did not combine with, or aggravate, his PTSD [post-traumatic stress disorder] to cause any disability.� The Commission found that the evidence shows Mr. Butts� inability to work, if any, is caused solely by that non-work related condition.�� ��

We do agree with Butts that the Commission erred in not following the Ellison standard.� We, however, decline to reach the ultimate merits of Butts� position under the Ellison standard.� We believe in the first instance that the Commission should be given the opportunity to assess and weigh the evidence under the proper legal standard.� ���

As noted above, the court in Ellison held it is not necessary that the new injury aggravate the pre-existing condition; rather, it is enough if the combined effects of the new injury and the pre-existing condition result in a greater disability to the claimant.� In the current appeal, neither the Commission nor the circuit court had the benefit of Ellison at the time their decisions were rendered and they did not apply this legal standard.[3]� Rather, they seemed to focus on the fact that Butts suffered from a pre-existing impairment that allegedly was not exacerbated by the subsequent accident, which is not the standard in Ellison.

As a result, we reverse and remand this case to the circuit court, which shall send the case back to the Commission with instructions that the Commission consider, on the existing record, Butts� claim under the Ellison standard.�

IV.

For the foregoing reasons, the order on appeal is

REVERSED AND REMANDED.

HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.

[1] Butts reportedly acquired this condition as a result of his service in Vietnam.� He first received treatment for this stress condition in September 2000.�

[2]� Section 42-9-400(a) was recently amended, but the change does not affect this appeal as it applies only to injuries occurring on or after July 1, 2007.� The amendment eliminated the language regarding the combined effects.� The statute now provides in relevant part:� �If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater and is caused by aggravation of the preexisting impairment than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall pay all awards of compensation and medical benefits provided by this title . . . .� �2007 Act No. 111, Pt. II, � 3 (emphasis added). �We do not reach the question whether Ellison has been effectively overruled by 2007 Act No. 111.� However, since the change applies only to injuries occurring on or after July 1, 2007, the current appeal must be decided under the version of section 42-9-400 that was applicable at the time of Butts� injury, which is the same version of the statute that was applied in Ellison.

[3]� Ellison was issued on November 20, 2006; the Commission�s order was filed on March 15, 2005 and the circuit court�s order was filed on July 20, 2006.� Ellison does not represent new law, but is simply a matter of statutory interpretation.�