In The Court of Appeals

Kevin Davideit/Keith Davideit, (Deceased), Employee, Appellant,


ScanSource, Employer, and St. Paul Fire & Marine Ins. Co., Carrier, Respondents.

Appeal From Greenville County
 Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2008-UP-279
Heard May 7, 2008 – Filed May 29, 2008


Malcolm M. Crosland, Jr., of Charleston, for Appellant.

Donald L. Van Riper, of Greenville, for Respondents.

PER CURIAM:  In this action for death benefits, the circuit court affirmed the Workers’ Compensation Commission’s (Commission’s) denial of benefits for the death of Keith Davideit.  Kevin Davideit appeals on behalf of the decedent.  We affirm.    


When he died, Keith Davideit was a forty-four-year-old employee of ScanSource.  Davideit had a seizure disorder that he managed by taking Dilantin.  He suffered only two seizures in thirteen years.  Sometime in the afternoon of May 9, 2003, Davideit left his work station and went to the men’s restroom.  His co-workers later found him there, dead.  He was lying on his back in a stall with his pants around his knees, as if he had been sitting on the toilet and had fallen off.  A waste can partially covered his head, and he had aspirated some of the waste can’s plastic liner.  A co-worker “had to pull several times” to remove the plastic liner from Davideit’s mouth. 

Dr. Michael Ward performed an autopsy at the request of the coroner and the medical examiner’s office.  The autopsy revealed atherosclerotic coronary vascular disease with seventy to seventy-five percent stenosis of the vessel lumen and acute pulmonary vascular congestion.[1]  Dr. Ward found Davideit’s somewhat enlarged heart (mild cardiomegaly) and his aspiration of the plastic liner contributed to his death.  

Dr. Ward testified he believed Davideit died from a heart attack caused by atherosclerotic coronary artery disease rather than from asphyxiation.  Dr. Ward prepared paraffin blocks during the autopsy, but they did not confirm asphyxiation as the cause of death.  He found mild pulmonary vascular congestion, meaning blood was backed up in the lung’s blood vessels because the left side of the heart was not functioning properly near death.  Dr. Ward testified this condition corresponds directly with a heart attack but only indirectly with asphyxiation.  Dr. Ward conceded Davideit may have suffered a seizure as well as a heart attack.  The postmortem toxicology report found no Dilantin in his system.  Dr. Ward believed Davideit did not die immediately upon falling to the floor; rather, he continued breathing at least long enough to inhale the plastic liner.  However, Dr. Ward opined that Davideit would have died regardless of whether the plastic liner was in his throat.    

Six other doctors reviewed the records pertaining to Davideit’s death and autopsy, but none of them examined the body.  Five of those doctors theorized Davideit suffered a seizure, and four believed Davideit would have survived had he not aspirated the plastic liner.  One doctor found inadequate data to determine the cause of death with certainty but believed Davideit could have died from either a heart attack or asphyxiation. 

Davideit’s family sought workers’ compensation benefits for his death.  The single commissioner found Davideit died of a heart attack and denied benefits.  Both the appellate panel of the Commission and the circuit court affirmed.  This appeal followed.


In reviewing workers’ compensation decisions, the appellate court ascertains “whether the circuit court properly determined whether the appellate panel’s findings of fact are supported by substantial evidence in the record and whether the panel’s decision is affected by an error of law.”  Baxter v. Martin Bros., Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006) (citations omitted); see also S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).  “‘Substantial evidence’ is evidence which, considering the entire record, would allow reasonable minds to arrive at the same conclusion reached by the administrative agency.”  S.C. Second Injury Fund v. Liberty Mut. Ins. Co., 353 S.C. 117, 122, 576 S.E.2d 199, 202 (Ct. App. 2003).  The Administrative Procedures Act does not permit an appellate court to “substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact.”  West v. Alliance Capital, 368 S.C. 246, 251, 628 S.E.2d 279, 282 (Ct. App. 2006). 


Davideit argues his death is compensable as a fall under the increased danger rule.  We disagree.

The appellate panel is the ultimate fact finder in Workers’ Compensation cases and is not bound by the single commissioner’s findings of fact.  Etheredge v. Monsanto Co., 349 S.C. 451, 454, 562 S.E.2d 679, 681 (Ct. App. 2002).  The final determination of witness credibility and the weight to be accorded evidence is reserved to the appellate panel.  Id. at 455, 562 S.E.2d at 681.  Expert medical testimony is designed to aid the appellate panel in coming to the correct conclusion.  Corbin v. Kohler Co., 351 S.C. 613, 624, 571 S.E.2d 92, 98 (Ct. App. 2002).  Therefore, the appellate panel determines the weight and credit to be given to the expert testimony.  Id. at 624, 571 S.E.2d at 98.  When there is conflicting medical evidence, the findings of fact of the appellate panel are conclusive.  Nettles v. Spartanburg Sch. Dist. No. 7, 341 S.C. 580, 592, 535 S.E.2d 146, 152 (Ct. App. 2000).  “‘[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.’”  Corbin, 351 S.C. at 618, 571 S.E.2d at 95 (quoting Muir v. C.R. Bard, Inc., 336 S.C. 266, 282, 519 S.E.2d 583, 591 (Ct. App. 1999)).

I.  Substantial Evidence

Our first task in this matter is to determine whether the circuit court erred in finding substantial evidence supported the appellate panel’s findings of fact.  See Baxter, 368 S.C. at 513, 630 S.E.2d at 43.  The single commissioner, the appellate panel, and the circuit court all found Davideit died of a heart attack.  By contrast, Davideit’s argument on appeal hinges on the theory that he died from asphyxiation following a fall. 

The circuit court did not err in finding substantial evidence supported the decision of the appellate panel.  Following Davideit’s unwitnessed death, the appellate panel relied upon forensic evidence to determine the cause of death.  The appellate panel received and considered evidence including the coroner’s report, the medical examiner’s autopsy report and testimony, and opinions from six additional expert physicians.  Two likely causes of death emerged: heart attack and asphyxiation following a fall. 

A substantial amount of evidence supported the heart attack theory, including the observation that Davideit’s arteries suffered a seventy to seventy-five percent reduction in blood flow due to atherosclerosis.  In addition, blood had accumulated in his lungs, which suggested the left side of Davideit’s heart failed shortly before death.  Dr. Ward explained the lack of damage to the heart muscle by stating such damage generally becomes apparent only if the decedent survives the heart attack for at least six hours.  On the other hand, a substantial amount of evidence also supported the asphyxiation theory.  The waste can’s plastic liner lodged deep in Davideit’s throat indicated a prolonged struggle to breathe.  Davideit’s history of a seizure disorder, coupled with the finding of no Dilantin in his system, offered a plausible explanation for a fall and subsequent inability to extricate himself from the overturned waste can.  However, Dr. Ward testified the paraffin blocks he prepared during the autopsy failed to establish asphyxiation as the cause of death.  Thus, the appellate panel had to decide between two competing and highly credible explanations for this death. 

The appellate panel made its decision by assigning different weights to the opinions of the expert physicians.  Of the physicians who offered opinions, only the medical examiner, Dr. Ward, had actually examined the body.  The opinions of all the other experts were “obtained by the attorneys from both sides for the purpose of supporting their respective positions on the cause of death.”  Whereas Dr. Ward personally examined the body and conducted the autopsy, and the other expert physicians merely reviewed records prepared by Dr. Ward and others, the appellate panel placed greater weight upon Dr. Ward’s opinion.  Consequently, the appellate panel subscribed to Dr. Ward’s theory of death by heart attack.  Because substantial evidence supported this theory, neither the appellate panel nor the circuit court erred in accepting it. 

II.  Error of Law

Having found the circuit court properly concluded substantial evidence supported the appellate panel’s findings of fact, we next turn to whether the appellate panel’s decision was affected by an error of law.  See Baxter, 368 S.C. at 513, 630 S.E.2d at 43. 

An injury is compensable under the Workers’ Compensation Act (Act) if it occurs accidentally, “arising out of and in the course of employment.”  S.C. Code Ann. § 42-1-160(A) (Supp. 2007).  Generally, when an employee’s death is unexplained, unnatural, and accidental, courts presume the death arose out of employment when circumstances indicate the death “took place within the time and space limits of the employment.”  Bagwell v. Ernest Burwell, Inc., 227 S.C. 444, 451, 88 S.E.2d 611, 614 (1955).  Breaks taken to care for an employee’s personal comfort are incidental to employment, and events occurring during those breaks arise out of and in the course of employment.  Portee v. S.C. State Hosp., 234 S.C. 50, 54, 106 S.E.2d 670, 672 (1959).   However, specific rules relating to unexplained falls and heart attacks modify this rule, as indicated below. 

The standard we use to determine whether an employee’s death is compensable under the Act depends upon the cause of death.  Therefore, we evaluate the compensability of Davideit’s death from a fall using a different standard than the compensability of his death from a heart attack. 

A.  Fall

Under the increased danger rule, an unexplained fall is generally not compensable unless the employment contributed to either the cause or the effect of the fall.  Bagwell, 227 S.C. at 452-53, 88 S.E.2d at 614-15.  However, under the special risk rule: 

The causative danger must be peculiar to the work and not common to the neighborhood.  It must be incidental to the character of the business and not independent of the relation of master and servant.  It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.

West v. Alliance Capital, 368 S.C. 246, 252, 628 S.E.2d 279, 282 (Ct. App. 2006) (emphasis added; internal citations omitted).  Injuries are excluded from compensability under the Act when they come “from a hazard to which the workmen would have been equally exposed apart from the employment.”  Crosby, 330 S.C. at 493, 499 S.E.2d at 255. 

Assuming arguendo Davideit died from the combination of a fall followed by asphyxiation, his death would not be compensable.  Davideit argues on appeal that the increased danger rule, and not the special risk rule, governs this matter.  We disagree.  We find these rules work in harmony with one another and are not mutually exclusive.  The special risk rule clarifies and limits the increased danger rule rather than competing with it.  For example, our supreme court denied compensation for death from an unexplained fall onto a concrete floor, despite recognizing that the hard concrete floor may have contributed to the severity of the employee’s injury.  Bagwell, 227 S.C. at 453, 88 S.E.2d at 615.  When the employee would likely have encountered the same hazard in any public place or private home, the increased danger rule did not apply.  Id. at 453, 88 S.E.2d at 615. 

Davideit asserts the most likely sequence of events leading to his death include a seizure or heart attack event while seated on the toilet, a resulting fall to the floor, and asphyxiation on the waste can’s plastic liner while incapacitated by the seizure.  Because Davideit’s injury occurred “within the time and space limits of [his] employment,” we begin with the presumption that his death arose out of his employment.  See Bagwell, 227 S.C. at 451, 88 S.E.2d at 614.  The personal comfort doctrine protects his claim from exclusion merely because his injury occurred during a restroom break.  See Portee, 234 S.C. at 54, 106 S.E.2d at 672.   Davideit argues his exposure to the waste can’s plastic liner renders his death compensable under the increased danger rule.  However, Davideit does not assert his work at ScanSource exposed him to waste cans or plastic liners any more than any other aspect of his life.  In fact, no evidence supports the assertion that Davideit’s exposure to waste cans or plastic liners was incidental to the character of his work, or that he encountered those items more at work than in any other aspect of his life.  Consequently, we find the special risk rule renders Davideit’s death not compensable. 

B.  Heart Attack

A heart attack may be compensable if “‘the death arose out of employment, in that it was brought about by unexpected strain or over-exertion, or as a result of unusual and extraordinary conditions of employment.’”  S.C. Second Injury Fund v. Liberty Mut. Ins. Co., 353 S.C. 117, 124, 576 S.E.2d 199, 203 (Ct. App. 2003) (quoting Jennings v. Chambers Dev. Co., 335 S.C. 249, 255, 516 S.E.2d 453, 456 (Ct. App. 1999)).  Under the two-pronged heart attack standard, an injured employee must prove he suffered some unexpected exertion as part of his employment and the exertion caused his injury.  Id. at 125-26, 576 S.E.2d at 204. 

Davideit’s death from a heart attack is not compensable.  Again, we begin with the presumption Davideit’s death arose from his employment and was not excluded from compensability merely because it occurred during a personal comfort break.  However, under the heart attack standard, a claimant must prove some unexpected strain or over-exertion or extraordinary condition of employment caused his heart attack.  Davideit does not argue, nor does the evidence indicate, that he experienced any unanticipated strain or exertion.  Furthermore, there is no indication that any such strain caused his heart attack.  Although Davideit does contend his ingestion of the plastic liner contributed to his death, he does not assert it caused his heart attack.[2]  Consequently, we find Davideit’s heart attack did not arise out of his employment, and it is not compensable. 


We find the circuit court properly concluded substantial evidence supported the appellate panel’s finding of death by heart attack and no error of law affected the appellate panel’s decision.  Therefore, the circuit court did not err in affirming the order of the appellate panel denying Davideit benefits.  Accordingly, the order of the circuit court in this matter is


SHORT and KONDUROS, JJ., and CURETON, A.J., concur.

[1] “Atherosclerotic coronary vascular disease,” or atherosclerosis, is a condition in which plaque deposits in the arteries compromise blood flow.  Plaque comprised of deposits of cholesterol, fat, calcium, or other waste causes the arteries to narrow and harden.  The percentage of stenosis of the vessel lumen indicates how much of the original passage has become clogged.  According to the American Heart Association:

Plaques can grow large enough to significantly reduce the blood’s flow through an artery.  But most of the damage occurs when they become fragile and rupture.  Plaques that rupture cause blood clots to form that can block blood flow or break off and travel to another part of the body. If either happens and blocks a blood vessel that feeds the heart, it causes a heart attack.  If it blocks a blood vessel that feeds the brain, it causes a stroke. 

[2] Even were he to make that argument, the special risk rule would bar compensability, as discussed above.