Coleman v. Quality Concrete Products, Inc., 18342

• Decision Date: 30 April 1965
• Docket Number: No. 18342,18342
• Citation: 142 S.E.2d 43,245 S.C. 625
• Court: South Carolina Supreme Court
• Parties: Thomas F. COLEMAN, Appellant, v. QUALITY CONCRETE PRODUCTS, INC. and Employers Mutual of Wausau, Respondents.

Page 43

142 S.E.2d 43

245 S.C. 625

Thomas F. COLEMAN, Appellant, v. QUALITY CONCRETE PRODUCTS, INC. and Employers Mutual of

Wausau, Respondents.

No. 18342.

Supreme Court of South Carolina.

April 30, 1965.

Bolt & Bowen, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondents.

BUSSEY, Justice:

In this Workmen's Compensation case the employee-appellant, on July 29, 1963, sustained an injury resulting in a double hernia and a surgical operation therefor which was performed on August 23, 1963, the employee having been discharged as recovered by the operating surgeon on October 18, 1963. The Commission found, as facts, inter alia, 'That the employee was discharged by the employer because he could not perform his usual work', and 'That the employee has been unable to obtain employment in the open labor market, suitable to his capacity or otherwise, due to his injury on July 29, 1963, thus suffering a total loss of wage earning capacity.' He was awarded compensation, inter alia, for total disability until the date of the hearing before the single Commissioner, which was January 21, 1964, and continuing thereafter 'until such time as the claimant returns to gainful employment suitable to his capacity or until it is found by the South Carolina Industrial Commission that the total disability has ceased, etc.'

The employer, having contended that the employee had not sustained a compensable injury, appealed the entire award to the Greenville County Court which reversed the award only insofar as the employee was awarded compensation for total disability beyond the date of his discharge by the operating surgeon, and remanded the case to the Commission for the determination of any partial disability which the employee might have. From this order the employee appeals.

The employee does not contend that he is totally disabled from a physical or medical standpoint, but does contend that at least until the time of the hearing, if not permanently, he was totally disabled within the purview of the Workmen's Compensation Law in that his earning capacity had been totally destroyed as a result of his injury. The basic contention of the respondent is that there is no competent evidence in the record to support the finding of fact by the Commission that the employee's earning capacity was so totally destroyed. It is unnecessary to cite authority for the proposition that our review of factual findings by the Commission is limited to the determination of whether or not there is any competent evidence to sustain such. Other principles of law applicable to the case before us are well set forth in Wynn v. Peoples Natural Gas Co. of S. C., 238 S.C. 1, 118 S.E.2d 812, in the following language:

'Disability in compensation cases is to be measured by loss of earning capacity. Keeter v. Clifton Mfg. Co., 225 S.C. 389, 82 S.E.2d 520. Total disability does not require complete helplessness. Inability to perform common labor is total disability for one who is not qualified by training or experience for any other employment. Colvin v. E. I. DuPont de Nemours Co., 227 S.C. 465, 88 S.E.2d 581. On the other hand the rule in most states is that an employee who is capable of performing other work that is continuously available to him will not be deemed totally disabled because he is unable to resume the duties of the particular occupation in which he was engaged at the time of his injury. Clark v. Henry & Wright Mfg. Co., 1950, 136 Conn. 514, 72 A.2d 489; Frennier's Case, 1945, 318 Mass. 635, 63 N.E.2d 461; Stillwater Worsted Mills, Inc. v. Beal, 1959 , 150 A.2d 704; Larson's Workmen's Compensation Law, Section 57.53. The generally accepted test of total disability is inability to perform services other than those that are 'so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.' Lee v. Minneapolis Street Ry. Co., 1950, 230 Minn. 315, 41 N.W.2d 433, 436; Colvin v. E. I. DuPont de Nemours Co., supra; Larson's Workmen's Compensation Law, Section 57.51.'

In the light of the foregoing principles, we proceed to review the evidence. The employee at the time of the hearing was 58 years of age. He has a sixth grade education, left the farm when he was 17 years of age, and became employed as a heavy equipment operator, in which capacity he operated bulldozers, motor graders, front end loaders, earth moving machines, etc., which vocation he followed for a total of thirty-seven years. The only other job he ever held was for a period of approximately two and a half years when he was a maintenance man or janitor for an apartment building. He was, at the time of his injury and for a number of years prior thereto, employed at his regular vocation. Incident to his job, he was responsible for the repair and maintenance of the equipment which he operated. The uncontradicted medical evidence is to the effect that following and as a result of his injury he is no longer able to perform the duties incident to his regular vocation. He was refused...