Forrest v. A.S. Price Mechanical, 4227.

• Decision Date: 02 April 2007
• Docket Number: No. 4227.,4227.
• Citation: 644 S.E.2d 784
• Parties: Cally R. FORREST, Jr., Respondent, v. A.S. PRICE MECHANICAL and O'Steen Adjusting Services, Appellants.
• Court: South Carolina Court of Appeals

644 S.E.2d 784

Cally R. FORREST, Jr., Respondent, v. A.S. PRICE MECHANICAL and O'Steen Adjusting Services, Appellants.

No. 4227.

Court of Appeals of South Carolina.

Heard March 6, 2007.

Filed April 2, 2007.

Rehearing Denied May 17, 2007.

Duke K. McCall, Jr., Rebecca H. Zabel and Zandra Johnson, all of Greenville, for Appellants.

Belinda Ellison, of Lexington and James B. Richardson, of Columbia, for Respondent.

KITTREDGE, J.:

In this workers' compensation case, Cally R. Forrest, Jr. sustained injuries from a work-related accident while employed by Appellant A.S. Price Mechanical.¹ Appellant concedes that Forrest is entitled to lifetime medical and workers' compensation benefits. Appellant assigns error to the Workers' Compensation Commission's computation of Forrest's compensation, the finding that Forrest has reached maximum medical improvement (MMI), and the admission of Forrest's vocational expert's report. We affirm.

I.

With the exception of four semesters spent at Clemson University, Forrest was employed full-time since graduating from high school in 1995, usually working multiple jobs.² As a high school student, Forrest worked regularly, including seasonal, full-time work with Monetta Peach Packers. He continued seasonal employment with Monetta Peach Packers until his injury on May 26, 2001. During the remaining months of the year, Forrest worked for several employers, including Appellant A.S. Price Mechanical, Price's Metal Shop, Gibson Construction Company, and J.E. Oswalt & Sons ("Oswalt").

After leaving Clemson in December of 1998, Forrest began working full-time for Larry Price at Price's Metal Shop.³ Forrest also worked for Appellant on the weekends. In the fall of 1999, Forrest's job with Appellant changed from part-time to full-time, and he began working for Larry Price only part-time. When work with Appellant was slow, Forrest would work for Gibson Construction Company. Eventually, his job with Gibson Construction Company became full-time, and he worked for Appellant only part-time. By the start of the 2000 peach season, the specific construction Forrest was working on was completed with Gibson Construction Company, and Forrest once again began his seasonal work with Monetta Peach Packers.

At the end of the peach season in 2000, Forrest began working full-time for Oswalt and part-time with Appellant. When the peach season began in 2001, he left his job at Oswalt and went back to Monetta Peach Packers. Forrest testified he intended to go back to work for Oswalt at the end of the 2001 peach season. He further noted that the owner of Oswalt and one of the owners of Monetta Peach Packers were friends and knew of his intentions.

Forrest was injured during the 2001 peach season when he fell from a roof while working part-time for Appellant. Forrest was twenty-four years old at the time of the accident. The injuries rendered him a paraplegic.

Appellant agreed to pay Forrest workers' compensation at a rate of $490.00. This amount reflected Forrest's combined wages from Appellant and Monetta Peach Packers.

The single commissioner subsequently adjusted the compensation rate to $532.72. This compensation rate represented Forrest's average weekly wage from January 1, 2001 to May 26, 2001, while working for Appellant, Monetta Peach Packers, and Oswalt. The Commission adopted the order of the single commissioner. The circuit court held the Commission's findings were supported by substantial evidence and affirmed.

II.

The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers' Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). "In workers' compensation cases, the Full Commission is the ultimate fact finder." Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). This court reviews facts based on the substantial evidence standard. Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 877 (Ct. App.2006). Under the substantial evidence standard, the appellate court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact. S.C.Code Ann. 1-23-380(A)(5) (Supp.2006). The appellate court may reverse or modify the Commission's decision only if the claimant'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. Id. "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 Full Commission reached." Shealy, 341 S.C. at 455, 535 S.E.2d at 442.

III.

Appellant argues the circuit court erred in affirming the Commission's computation of Forrest's average weekly wage of $532.72. First, Appellant asserts that the doctrines of estoppel and laches preclude Forrest from asserting a different wage than the parties agreed upon. Next, Appellant objects to the inclusion of Oswalt as an employer in the rate computation, and maintains that Forrest was not employed with Oswalt at the time of his injury. Appellant contends any wages earned as a result of his previous employment with Oswalt are irrelevant per section 42-1-40 of the South Carolina Code (Supp.2006). Finally, Appellant argues there are no exceptional circumstances justifying an adjustment or computation of Forrest's average weekly wage in a method other than that employed originally.

At the outset we hold that the doctrines of estoppel and laches do not preclude the Commission from adjusting the average weekly wage prior to the administrative body's final determination. Appellant's argument stems from the fact that Forrest's initial compensation rate was $300 per week until he requested that this rate be increased to include wages earned from Monetta Peach Packers. Appellant states it agreed to the new calculation ($490 per week) and filed a new Form 15 with the Commission in exchange for Forrest agreeing to withdraw his request for a hearing. Forrest filed a new Form 19 with the Commission confirming his acceptance of the rate, and Appellant maintains it relied to its detriment on Forrest's promise of acceptance.

The circuit court correctly held that neither a Form 15 nor a Form 19 is a final judgment. Section 42-17-10 of the South Carolina Code (1985) allows the Commission to adjust a claimant's compensation rate after the filing of the claim, even when the parties agree to the preliminary compensation rate. Section 42-17-10 provides: "All such agreements [between the claimant and employer as to rate of compensation] shall be subject to adjustment and correction as to the compensable rate if subsequent to filing with the Commission it is determined that such rate does not reflect the correct average weekly wage of the claimant." Moreover, Appellant has failed to establish any detrimental reliance.

On the merits, we disagree with Appellant's contention that the Commission erred in including Oswalt as an employer in Forrest's average weekly wage computation. Section 42-1-40 of the South Carolina Code (Supp.2006) defines "average weekly wage" for the purposes of computing compensation and sets forth four different methods of calculation.⁴ The methods for calculating average weekly wage explained in section 42-1-40 have been interpreted by our courts to implement the "usual" job situation with one employer. See Foreman v. Jackson Minit Markets, Inc. 265 S.C. 164, 167, 217 S.E.2d 214, 215 (1975) (summarizing the four different methods of calculating average weekly wage in the predecessor to section 42-1-40). However, section 42-1-40 further provides that when exceptional reasons make one of the standard approaches unfair to either the employer or employee, "such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury." We note that exceptional circumstances have been found where an employee has multiple employers at the same time. See, e.g. Brunson v. Wal-Mart Stores, Inc., 344 S.C. 107, 111, 542 S.E.2d 732, 734 (Ct.App.2001) (listing several cases where multiple employment has been sufficient to justify exceptional circumstances).

Appellant argues section 42-1-40 requires that the wage being earned at the time of the injury be the wage that controls the compensation rate. On the date of the injury, Appellant correctly points out that Forrest only worked for Appellant and Monetta Peach Packers.

The Commission found that the following "exceptional circumstances" justified deviation from the usual statutory method of average weekly wage computation: (1) Forrest's young age of twenty-four years at the time of injury;⁵ (2) Forrest's demonstration of the interest, aptitude, ability, work ethic, and work history to be both a welder or maintenance worker and an employee who had worked year-round with multiple employers; (3) the fact that Forrest worked for Monetta Peach Packers during the peach season for several months each year since he was fifteen and had worked for two or three additional employers to complete his annual earnings and year-round employment; (4) the severity of Forrest's injury; and (5) the fact that Appellant knew that Forrest regularly worked full-time and part-time for multiple employers.

The circuit court did not err in affirming the Commission.⁶ The Commission acted within its broad discretion in determining that exceptional circumstances existed. In finding exceptional circumstances in other cases, this court has reasoned that "[section 42-1-40] provides an elasticity or flexibility with a view toward always achieving the ultimate objective of reflecting fairly a claimant's probable future earning loss." Sellers v. Pinedale Residential Ctr., ...