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

Juan Marin, Appellant,

v.

Black & Decker Distribution, Inc., Employer, and Speciality Risk Services, Carrier, Respondents.


Appeal From York County
John C. Hayes, III, Circuit Court Judge


Unpublished Opinion No. 2006-UP-241
Submitted January 1, 2006 – Filed May 15, 2006   


AFFIRMED


John S. Nichols, of Columbia, for Appellant.

Garth H. White, of Charlotte, for Respondents.

PER CURIAM: In this workers’ compensation action, Juan Marin appeals the circuit court’s affirmance of the Appellate Panel of the South Carolina Workers’ Compensation Commission’s order denying Marin’s claim for depression as a change of condition.  We affirm. 1

FACTS

Marin filed a workers’ compensation claim against Black & Decker Distribution, Inc., and Speciality Risk Services (collectively “Black & Decker”), asserting he was injured when a roll of plastic fell on his right leg while he was operating a forklift.  At the hearing on October 24, 2001, the issues presented to the single commissioner were (1) whether Marin was entitled to temporary total disability from March 2, 2001 to July 30, 2001 and (2) whether his alleged depression was causally related to the admitted injury to the foot.

During the hearing, Marin testified the injury to his foot rendered him unable to walk, which caused him to be depressed because he was unable to support his family.  Marin denied experiencing depression prior to his injury and stated he believed his depression stemmed from his failure to provide for his family.  Marin became emotional when he spoke of his daughter’s behavioral problems at school. 

The single commissioner held Marin was entitled to temporary total disability only from the date of the accident until March 26, 2001, when he was to return to work with restrictions but failed to do so.  She found that if Marin was depressed, the depression was unrelated to the injury and stemmed from his daughter’s difficulties at school.  Accordingly, the single commissioner concluded Marin’s claim for depression was not compensable. 

On February 15, 2002, Marin filed a motion to admit additional evidence to the commission, seeking to introduce medical records and a letter from his doctor dated January 15, 2002, in which the doctor opined Marin’s depression was related to his pain.  The commission denied the motion, finding the evidence sought to be admitted did not meet the criteria of newly discovered evidence, pursuant to South Carolina Regulation 67-707 (Supp. 2005), because it was developed after the hearing. 

On appeal, the commission reversed the single commissioner’s denial of temporary total benefits after March 26, 2001 but affirmed the denial of additional benefits related to a claim for depression.  Black & Decker appealed the commission’s ruling on two issues unrelated to this appeal, and the circuit court affirmed the commission.  Marin did not appeal the commission’s decision finding his depression not compensable.

On August 20, 2002, Marin filed a request for a hearing seeking benefits for depression as a change of condition.  At the hearing before the single commissioner, Marin testified since the injury to his foot, he suffered from depression, and because his physical ailments have worsened, he contemplated suicide.  The single commissioner denied Marin’s claim for depression as a change of condition, finding Marin had previously requested a hearing as to the compensability of his depression and because Marin had not appealed the decision finding his depression not compensable, that ruling was the law of the case.  Additionally, the single commissioner found the change of condition statute does not allow a claimant to maintain a change of condition claim for an injury that was previously considered and not compensated.  Further, the single commissioner found the doctrine of res judicata barred Marin’s claim. 

The Appellate Panel of the Worker’s Compensation Commission affirmed the single commissioner, adopting the single commissioner’s findings in full.  The circuit court found the decision of the commission was supported by substantial evidence in the record and affirmed that decision.  This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission.  Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981).  This court can reverse or modify the commission’s decision only if the appellant’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.  Shealy v. Aiken County, 341 S.C. 448, 454, 535 S.E.2d 438, 442 (2000); S.C. Code Ann. § 1-23-380(A)(6) (2005).  “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 [commission] reached.”  Shealy, 341 S.C. at 455, 535 S.E.2d at 442. 

The determination of whether a claimant experiences a change of condition is a question for the fact finder.  Krell v. S.C. State Hwy. Dept., 237 S.C. 584, 588, 118 S.E.2d 322, 323-24 (1961).  

LAW/ANALYSIS

I.       Change of Condition

Marin argues his claim for depression was not barred by the doctrine of res judicata but rather was compensable as a change of condition.  We disagree. 

Under the doctrine of res judicata, a litigant is barred from raising issues previously adjudicated between the parties in a subsequent action.  Hilton Head Ctr. of S.C., Inc. v. Pub. Serv. Comm’n of S.C., 294 S.C. 9, 11, 362 S.E.2d 176, 177 (1987).  Res judicata requires three elements:  (1) a judgment that is final, valid, and on the merits; (2) the parties in the second action are identical to those in the first; and (3) the subsequent action must involve a subject matter properly included in the first action.  See Owenby v. Owens Corning Fiberglas, 313 S.C. 181, 183, 437 S.E.2d 130, 131 (Ct. App. 1993). 

However, our workers’ compensation statute allows for consideration of a change of condition.  South Carolina Code section 42-17-90 (1985) provides:

Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Title, and shall immediately send to the parties a copy of the order changing the award.  No such review shall affect such award as regards any moneys paid and no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under this Title.

This section is “limited to the consideration of a change in condition of the injury on which the original award was made.”  Estridge v. Joslyn Clark Controls, Inc., 325 S.C. 532, 537, 482 S.E.2d 577, 580 (Ct. App. 1997).  A change in condition occurs when a claimant undergoes a change in condition as a result of the original injury, occurring after the first award has been made.  Causby v. Rock Hill Printing & Finishing Co., 249 S.C. 225, 227, 153 S.E. 2d 697, 698 (1967).  To be compensable, a mental condition must be induced by a compensable physical injury or by unusual or extraordinary conditions of employment.  Getsinger v. Owens-Corning Fiberglas, 335 S.C. 77, 80, 515 S.E.2d 104, 106 (Ct. App. 1999).  In order to establish a modification based on a change of condition, the claimant must show a change of condition, and the change must be based upon a causal connection to the original compensable accident.  Krell v. S.C. State Highway Dep’t, 237 S.C. 584, 588, 118 S.E.2d 322, 323 (1961) (citations omitted).  Seeking review as a change of condition “is not available as an alternative to, or substitute for, an appeal.”  Gattis v. Murrells Inlet VFW # 10420, 353 S.C. 100, 109, 576 S.E.2d 191, 195 (Ct. App. 2003).

We agree with the circuit court that Owenby v. Owens Corning Fiberglas, 313 S.C. 181, 437 S.E.2d 130 (Ct. App. 1993), is applicable to the present case.  In Owenby, the claimant suffered a work-related injury when a piece of glass became embedded in her finger.  The finger became infected and had to be partially amputated.  The circuit court and Full Commission affirmed the Single Commissioner’s denial of benefits for psychological injury.  The claimant did not appeal.  Subsequent