Bass v. Kenco Group, No. 4046.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtAnderson
Citation622 S.E.2d 577
PartiesJohn BASS, Jr., Employee, Respondent, v. KENCO GROUP, Employer, and Zurich American Insurance Company, Carrier, Appellants.
Docket NumberNo. 4046.
Decision Date21 November 2005
622 S.E.2d 577
John BASS, Jr., Employee, Respondent,
v.
KENCO GROUP, Employer, and Zurich American Insurance Company, Carrier, Appellants.
No. 4046.
Court of Appeals of South Carolina.
Heard November 8, 2005.
Decided November 21, 2005.

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COPYRIGHT MATERIAL OMITTED

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Darryl D. Smalls, of Columbia, for Appellants.

Hyman S. Rubin, Jr., of Columbia, for Respondent.

ANDERSON, J.:


In this Workers' Compensation case, Kenco appeals the circuit court's order affirming an award of benefits to John Bass.

FACTUAL/PROCEDURAL BACKGROUND

In July of 2000, Bass began driving a truck, delivering and installing appliances for Kenco. Bass injured his left shoulder on January 24, 2001 while he and a co-worker attempted to move an 800-pound refrigerator down the ramp of a tractor-trailer. After returning to work, Bass re-injured his left shoulder on March 2, 2001 while unloading a double oven.

Dr. Fulton began treating Bass after the March 2 injury. He placed Bass on light-duty restrictions of no overhead lifting with the left arm, and no lifting of greater than ten pounds. Bass underwent a six-week pain management program. He was eventually released by Dr. Midcap to return to work on a permanent light-duty status. Bass was able to perform office work, but could no longer drive a truck. Due to the sedentary work restrictions, Bass earned only one-third to one-half the salary he made as a truck driver.

In addition to his physical indisposition, Bass experienced anxiety and depression. Dr. Drummond performed a psychological evaluation and declared Bass "dysfunctional." Dr. Drummond concluded:

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the Claimant's chronic pain was interfering with his life more than normal, that he was suffering from affective distress and feeling of diminished control over his life, and . . . he was evidencing lower overall general activity including social activity, activities away from home, outdoor work, household chores, and a lower repertoire of distracting responses to help him cope with the pain.

Bass was referred to a psychologist, who determined he would be unable to return to work until his symptoms subsided. Bass saw Dr. Estefano, a psychiatrist, who opined Bass had developed severe depression and panic attacks as a consequence of his work-related injury. According to Dr. Estefano, Bass would "not be able to return to work for an indefinite amount of time due to his mental and physical condition."

Bass filed a Form 50 seeking an award for (1) permanent partial general disability as a result of injuries to his left shoulder and mental and emotional injuries; (2) past and future medical examination and treatment for psychological and psychiatric conditions induced by the accident; (3) a determination of average weekly wage and compensation rate; and (4) other appropriate benefits under the Workers' Compensation Act.

The single commissioner concluded:

Pursuant to S.C.Code Ann. § 42-9-20 John Bass, Jr. has sustained permanent partial disability which has permanently altered his earning capacity from a pre-accident average weekly wage of $1,211.52 to a current weekly expectation of $280, which results in a weekly wage loss of $931.52. Multiplying this figure by .667 equals $621.77 for an accident occurring in 2001. I conclude that the Claimant has suffered this wage loss for the maximum period of 340 weeks for permanent partial disability pursuant to S.C.Code Ann. § 42-9-20. I further find that the Claimant's partial disability began after a period of total disability and therefore pursuant to said section the amounts paid for temporary total disability shall not be deducted from the maximum of 340 weeks allowed for permanent partial disability.

Additionally, the commissioner ordered Kenco to pay for past psychiatric and psychological treatment and medications, and "any continuing causally related treatment and medications for those conditions . . . which tend to lessen the Claimant's period of disability resulting from his accident-related psychiatric or psychological conditions. Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 514 S.E.2d 593 (Ct.App.1999)."

The appellate panel and the circuit court affirmed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions of the workers' compensation commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981); Bass v. Isochem, 365 S.C. 454, 617 S.E.2d 369 (Ct.App.2005); Hargrove v. Titan Textile Co., 360 S.C. 276, 599 S.E.2d 604 (Ct.App.2004). A reviewing court may reverse or modify a decision of an agency if the findings, inferences, conclusions, or decisions of that agency are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." Bursey v. South Carolina Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004); S.C.Code Ann. § 1-23-380(A)(6)(e) (2005). Under the scope of review established in the APA, this Court may not substitute its judgment for that of the appellate panel as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law. Liberty Mut. Ins. Co. v. South Carolina Second Injury Fund, 363 S.C. 612, 611 S.E.2d 297 (Ct.App.2005); Frame v. Resort Servs., Inc., 357 S.C. 520, 593 S.E.2d 491 (Ct.App.2004); Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App.1996); S.C.Code Ann. § 1-23-380(A)(6)(d) (2005).

The substantial evidence rule of the APA governs the standard of review in a workers' compensation decision. Frame, 357 S.C. at 527, 593 S.E.2d at 494; Corbin v. Kohler Co., 351 S.C. 613, 571 S.E.2d 92 (Ct.App.2002); see also Lockridge v. Santens of America, Inc., 344 S.C. 511, 515, 544 S.E.2d

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842, 844 (Ct.App.2001) ("Any review of the commission's factual findings is governed by the substantial evidence standard."). Pursuant to the APA, this Court's review is limited to deciding whether the appellate panel's decision is unsupported by substantial evidence or is controlled by some error of law. See Rodriguez v. Romero, 363 S.C. 80, 610 S.E.2d 488 (2005); Gibson v. Spartanburg Sch. Dist. # 3, 338 S.C. 510, 526 S.E.2d 725 (Ct.App.2000); S.C.Code Ann. § 1-23-380(A)(6) (2005); see also Grant v. Grant Textiles, 361 S.C. 188, 191, 603 S.E.2d 858, 859 (Ct.App.2004) ("A reviewing court will not overturn a decision by the workers' compensation commission unless the determination is unsupported by substantial evidence or is affected by an error of law."); Lyles v. Quantum Chem. Co. (Emery), 315 S.C. 440, 434 S.E.2d 292 (Ct.App.1993) (noting that in reviewing decision of workers' compensation commission, court of appeals will not set aside its findings unless they are not supported by substantial evidence or they are controlled by error of law). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action. Pratt v. Morris Roofing, Inc., 357 S.C. 619, 594 S.E.2d 272 (2004); Jones v. Georgia-Pacific Corp., 355 S.C. 413, 586 S.E.2d 111 (2003); Etheredge v. Monsanto Co., 349 S.C. 451, 562 S.E.2d 679 (Ct.App.2002); Broughton v. South of the Border, 336 S.C. 488, 520 S.E.2d 634 (Ct.App.1999).

The appellate panel is the ultimate fact finder in workers' compensation cases and is not bound by the single commissioner's findings of fact. Gibson, 338 S.C. at 517, 526 S.E.2d at 729; Muir v. C.R. Bard, Inc., 336 S.C. 266, 519 S.E.2d 583 (Ct.App.1999). The final determination of witness credibility and the weight to be accorded evidence is reserved to the appellate panel. Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000); Parsons v. Georgetown Steel, 318 S.C. 63, 456 S.E.2d 366 (1995); Frame, 357 S.C. at 528, 593 S.E.2d at 495; Gibson, 338 S.C. at 517, 526 S.E.2d at 729. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. Sharpe v. Case Produce, Inc., 336 S.C. 154, 519 S.E.2d 102 (1999); DuRant v. South Carolina Dep't of Health & Envtl. Control, 361 S.C. 416, 604 S.E.2d 704 (Ct.App.2004); Corbin, 351 S.C. at 618, 571 S.E.2d at 95; Muir, 336 S.C. at 282, 519 S.E.2d at 591. Where there are conflicts in the evidence over a factual issue, the findings of the appellate panel are conclusive. Hargrove, 360 S.C. at 290, 599 S.E.2d at 611; Etheredge, 349 S.C. at 455, 562 S.E.2d at 681.

The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence. Anderson v. Baptist Med. Ctr., 343 S.C. 487, 541 S.E.2d 526 (2001); Hicks v. Piedmont Cold Storage, Inc., 335 S.C. 46, 515 S.E.2d 532 (1999); Frame, 357 S.C. at 528, 593 S.E.2d at 495. It is not within our province to reverse findings of the appellate panel which are supported by substantial evidence. Pratt, 357 S.C. at 622, 594 S.E.2d at 274-75; Broughton, 336 S.C. at 496, 520 S.E.2d at 637.

LAW/ANALYSIS
I. Efficacy of Kenco's Assignments of Error

As a threshold issue, Bass argues Kenco's appeal should be dismissed because (1) its assignments of error "fail to meet the standard of specificity required for judicial review," and (2) Kenco asserts an erroneous standard of review.

The circuit court noted that Kenco's assignments of error all contend the commission's findings were "`not supported by the greater weight of credible evidence nor . . . by existing South Carolina statutory or case law.'" The assignments, according to the circuit court, "fail to meet the standard of specificity required for judicial review under the Administrative Procedures Act." Furthermore, Kenco erroneously substitutes a preponderance or greater weight of the evidence standard for the...

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45 practice notes
  • Hall v. United Rentals, Inc., No. 4166.
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2006
    ...erroneous in view of the reliable, probative and substantial evidence on the whole record." Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct. App.2005). Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Pane......
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • February 1, 2008
    ...and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(5)(e)(Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004) aff'd 369 S.C. 176, 631......
  • Hall v. Desert Aire, Inc., No. 4324.
    • United States
    • Court of Appeals of South Carolina
    • December 20, 2007
    ...see also Hall v. United Rentals, Inc., 371 S.C. 69, 77, 636 S.E.2d 876, 881 (Ct.App.2006); Bass v. Kenco Group, 366 S.C. 450, 456, 622 S.E.2d 577, 580 (Ct.App.2005); Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct.App.2005) cert. denied, July Pur......
  • Houston v. Deloach & Deloach, No. 4408.
    • United States
    • Court of Appeals of South Carolina
    • June 10, 2008
    ...and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(5)(e) (Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004), aff'd, 369 S.C. 176, ......
  • Request a trial to view additional results
45 cases
  • Hall v. United Rentals, Inc., No. 4166.
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2006
    ...erroneous in view of the reliable, probative and substantial evidence on the whole record." Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct. App.2005). Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Pane......
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • February 1, 2008
    ...and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(5)(e)(Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004) aff'd 369 S.C. 176, 631......
  • Hall v. Desert Aire, Inc., No. 4324.
    • United States
    • Court of Appeals of South Carolina
    • December 20, 2007
    ...see also Hall v. United Rentals, Inc., 371 S.C. 69, 77, 636 S.E.2d 876, 881 (Ct.App.2006); Bass v. Kenco Group, 366 S.C. 450, 456, 622 S.E.2d 577, 580 (Ct.App.2005); Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct.App.2005) cert. denied, July Pur......
  • Houston v. Deloach & Deloach, No. 4408.
    • United States
    • Court of Appeals of South Carolina
    • June 10, 2008
    ...and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(5)(e) (Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004), aff'd, 369 S.C. 176, ......
  • Request a trial to view additional results

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