Swilling v. Pride Masonry of Gaffney

• Decision Date: 28 November 2012
• Docket Number: No. 5057.,5057.
• Citation: Swilling v. Pride Masonry of Gaffney, 401 S.C. 178, 736 S.E.2d 672 (S.C. App. 2012)
• Court: South Carolina Court of Appeals
• Parties: Terry Scott SWILLING, Employee/Claimant, Respondent, v. PRIDE MASONRY OF GAFFNEY, Employer, and Central Mutual Insurance Company, Carrier, Appellants. Appellate Case No. 2011–199988

401 S.C. 178

736 S.E.2d 672

Terry Scott SWILLING, Employee/Claimant, Respondent,

v. PRIDE MASONRY OF GAFFNEY, Employer, and Central Mutual Insurance Company, Carrier, Appellants.Appellate Case No. 2011–199988

No. 5057.

Court of Appeals of South Carolina.

Heard Oct. 29, 2012.

Decided Nov. 28, 2012.

Duke K. McCall, Jr., of Smith Moore Leatherwood, LLP, of Greenville, for Appellants.

V. Laniel Chapman, of Chapman, Byrholdt & Yon, LLP, and Michael F. Mullinax, of Mullinax Law Firm, both of Anderson, for Respondent.

SHORT, J.

Terry Scott Swilling, Employee/Claimant, filed this workers' compensation action against Pride Masonry of Gaffney, Employer, and Central Mutual Insurance Company, Carrier (collectively, Pride). Pride appealed, arguing error in the following: (1) the calculation of Swilling's average weekly wage; (2) the finding of permanent and total disability (PTD); (3) the finding that a subsequent injury was proximately caused by a work-related injury; and (4) the award of a lump-sum payment. We affirm.

FACTS

On June 8, 2006, while employed as a stonemason for Pride, Swilling was injured as he operated a skid steer to build a cement block room on a construction site. Swilling twisted his left ankle when he stepped out of the skid steer and fell onto gravel. He also struck his head, left elbow, and back. Swilling severely injured his left leg, resulting in two surgeries and an epidural steroid block. Subsequently, he experienced severepain extending from his foot into his hip and back. This caused him to place more pressure on his right leg and resulted in an antalgic gait. Swilling filed a workers' compensation claim for PTD. He claimed an average weekly wage of $840, based on $21 per hour at forty hours per week, with a corresponding compensation rate of $560.03.

Pride admitted the injury but denied Swilling was entitled to PTD. Pride also contested Swilling's average weekly wage, alleging a weekly wage of $742.14 with a compensation rate of $494.79. Finally, Pride sought credit for overpayment of benefits because Swilling suffered two subsequent accidents: a June 2009 motorcycle accident and an April 2010 automobile accident.

At an August 2010 hearing before a single commissioner of the South Carolina Workers' Compensation Commission (the Commission), Swilling testified he has been in the masonry business his entire working life. He is married and has two children. Although he graduated from high school in 1981, he reads at a third-grade level and cannot write, but he can sign his name.

At the time of the hearing, Swilling testified he was still experiencing excruciating pain in his foot, whole leg, and back, and he wore a brace from his left ankle to his knee and another brace on his right leg. He continued to use narcotic pain medication. It made him sleepy and dizzy, which caused him to fall. He had attempted to discontinue its use, but he suffered severe pain without the medication. Swilling also suffered migraines and depression, and he was being treated by a psychiatrist. His sleep was disrupted due to pain, and he slept during the day in a sitting position. He admitted he suffered anxiety due to numerous break-ins at his house in 2008. Swilling also testified he attempted to return to work as a delivery driver, but he became sleepy and was afraid he would cause an accident. He worked between surgeries performing light-duty labor for Pride.

Swilling admitted he was injured in the 2009 motorcycle accident, but he explained it affected the upper right side of his body and did not exacerbate his left leg injury. He also testified the 2010 automobile accident resulted in four broken ribs, but it did not contribute to the disability caused by his work-related accident. On cross-examination, Swilling disputed the medical records, which indicated he injured his back in the motorcycle and automobile accidents. Swilling also maintained an April 2010 fall was related to his work-related injury.

Pride admitted Swilling earned $21 per hour. Rather than file a claim with its carrier, Pride paid Swilling's medical bills until February 2010, when it began sending the bills to its insurance carrier. Pride paid Swilling a salary of $840 per week until March 2010, when Swilling could no longer work. The carrier did not make any payments.

The single commissioner found Swilling to be a credible witness. The commissioner also found although Pride was duly notified of the accident, it failed to report it to the Commission, and Swilling was paid $21 per hour for forty hours per week resulting in an average weekly wage of $840, which was the salary he was earning at the time of the accident. The commissioner found exceptional reasons existed to deviate from the Form 20, pursuant to section 42–1–40 of the South Carolina Code, and he found Swilling's average weekly wage to be $840 with a corresponding compensation rate of $560.03.

The commissioner also determined Swilling's injuries from the work-related accident alone, despite the subsequent motorcycle and automobile accidents, rendered him permanently and totally disabled. The commissioner ordered temporary total disability of $11,200.60 from March 2010 to the date of the hearing; reimbursement of medical bills; a lump-sum award of $228,657.84 for the remainder of Swilling's entitlement to five hundred weeks of compensation; and payment of future causally-related medical bills to his left leg, right leg, back, and psychological condition.

Pride filed a Form 30 Request for Commission Review. An appellate panel of the South Carolina Workers' Compensation Commission heard the matter. Other than amending the award to prorate the lump-sum award to minimize the reduction of Swilling's Social Security benefits pursuant to James v. Anne's Inc., 390 S.C. 188, 701 S.E.2d 730 (2010), the Commission affirmed the single commissioner. Pride appealed, and the circuit court affirmed. This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedure Act (APA) governs appeals from the decisions of the Commission. S.C.Code Ann. § 1–23–380 (Supp.2011); Lark v. Bi–Lo, Inc., 276 S.C. 130, 134–35, 276 S.E.2d 304, 306 (1981). Under the scope of review established in the APA, this court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact, but may reverse or modify the Commission's decision 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.” S.C.Code Ann. § 1–23–380(5)(e) (Supp.2011). Our supreme court has defined substantial evidence as evidence that, in viewing the record as a whole, would allow reasonable minds to reach the same conclusion that the Commission reached. Lark, 276 S.C. at 135, 276 S.E.2d at 306.

LAW/ANALYSISA. Average Weekly Wage

Pride argues the Commission erred in calculating Swilling's average weekly wage. We disagree.

According to Pride's Form 20, Swilling was hired on April 3, 2006, and his injury occurred on June 8, 2006. Swilling continued to work for several months until his first surgery. Until 2010, Swilling worked when he was able, performing light duty. He was paid $21 per hour for forty hours per week, totaling $840 per week. On the Form 20, Pride calculated Swilling's average weekly wage by claiming earnings of $28,943.50 over a period of thirty-nine working weeks for an average wage of $742.14 per week.

Section 42–1–40 of the South Carolina Code provides for the calculation of the average weekly wage. S.C.Code Ann. § 42–1–40 (Supp.2011). “The statute 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., 350 S.C. 183, 191, 564 S.E.2d 694, 698 (Ct.App.2002). “The objective of wage calculation is to arrive at a fair approximation of the claimant's probable future earning capacity.” Bennett v. Gary Smith Builders, 271 S.C. 94, 98–99, 245 S.E.2d 129, 131 (1978).

In Pugh v. Piedmont Mechanical, 396 S.C. 31, 38, 719 S.E.2d 676, 680 (Ct.App.2011), this court explained:

The primary method for calculating the average weekly wage is to take “the total wages paid for the last four quarters divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less.” § 42–1–40; Pilgrim v. Eaton, 391 S.C. 38, 45, 703 S.E.2d 241, 244 (Ct.App.2010). “The [Commission] must use this method unless ‘the employment, prior to the injury, extended over a period of less than fifty-two weeks,’ or unless ‘for exceptional reasons' it would be unfair to do so.” Pilgrim, 391 S.C. at 44–45, 703 S.E.2d at 244 (citing § 42–1–40).

“When for exceptional reasons the foregoing would be unfair, either to 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.” § 42–1–40.

The Commission in Pugh calculated the claimant's average weekly wage for a 2007 injury based on the seventeen-week period he worked prior to the injury. Pugh, 396 S.C. at 37, 719 S.E.2d at 679–80. The primary method of calculating average weekly wages was not appropriate because the claimant had not worked the fifty-two weeks preceding the injury. Id. at 38, 719 S.E.2d at 680. Therefore, the Commission calculated the average weekly wage based on the employer's Form 20, which divided the salary paid by the actual number of weeks the claimant worked. Id. The Pugh court found when the Commission determines the primary method of calculation is not permissible, “it is required to consider which of the alternative methods for calculating the average weekly wage is most appropriate based on the facts.” Id. at 39, 719 S.E.2d at 680. “Before the [C]ommission may use...