Woodie v. Hamrick Mills, Inc.

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Goldie Woodie,
Employee, Appellant,

v.

Hamrick Mills,
Inc., Employer, and Gallagher Bassett Services, Inc., Carrier, Respondents.

Appeal From Cherokee County

J. Mark Hayes, II, Circuit Court Judge

Unpublished Opinion No. 2012-UP-027

Heard January 12, 2012 – Filed January 25,
2012   

AFFIRMED

John S. Nichols and Blake A. Hewitt, both
of Columbia; and S. Belinda Ellison, of Lexington, for Appellant.

Bradford B. Easterling, of Greenville, for
Respondents.

PER CURIAM:  This
appeal arises out of the denial of Appellant Goldie Woodie's claim for benefits
by the Workers' Compensation Commission (the Commission).  The circuit court
affirmed the denial by the Commission.  On appeal, Woodie claims the circuit
court erred in:  (1) finding the hernia statute precludes benefits for a hernia
aggravated by a work-related injury and (2) making a gratuitous finding that
even if the rules of statutory construction require a distinction between
"hernia" and "rupture," the facts do not support such a
distinction.  We affirm.

1. As to Woodie's argument that the
court erred in finding section 42-9-40 (1985) prevents recovery, we find no
error of law and substantial evidence in the record on appeal to support the
finding of the Commission that Woodie failed to carry his burden of proving he
suffered a compensable hernia.  See S.C. Code Ann. § 42-9-40(5)
("In all claims for compensation from hernia or rupture, resulting
from injury by accident arising out of and in the course of the employee's employment,
it must be definitely proved to the satisfaction of the Commission . . . [t]hat
the hernia or rupture did not exist prior to the accident for which
compensation is claimed.") (emphasis added); Jordan v. Kelly Co.,
381 S.C. 483, 487, 674 S.E.2d 166, 169 (2009) ("Although the record
contains conflicting evidence, this Court is not in a position to weigh the
evidence presented in [a] workers' compensation hearing."); ESA Servs.,
LLC v. S.C. Dep't of Revenue, 392 S.C. 11, 24, 707 S.E.2d 431, 438 (Ct.
App. 2011) (holding a reviewing court may reverse or modify decisions that are
controlled by error of law or are clearly erroneous in view of the substantial
evidence on the record as a whole).  To the extent Woodie argues the only
evidence in the record is that he did not have a rupture prior to the workplace
accident, we find this argument unpreserved for appellate review.  See Bazen v. Badger R. Bazen Co., 388 S.C. 58, 65, 693 S.E.2d 436, 440 (Ct. App. 2010)
(noting only issues raised to and ruled upon by the Commission are cognizable
on appeal); Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d
505, 510 (2006) ("It is well settled that an issue cannot be raised for
the first time on appeal, but must have been raised to and ruled upon by the
trial court to be preserved."); Dixon v. Dixon, 362 S.C. 388, 399,
608 S.E.2d 849, 854 (2005) (holding an issue raised for the first time in a
Rule 59, SCRCP motion is not preserved for review).

2. As to Woodie's argument that the
circuit court erred in noting the facts of this case do not support a
distinction between the statutory terms "hernia" and
"rupture," we find this issue unpreserved for review.  See Dixon,
362 S.C. at 399, 608 S.E.2d at 854 (finding an issue raised for the first time
in a Rule 59, SCRCP motion is not preserved for review).  This distinction was
never developed in the record before the Commission, nor did the Commission
ever address the distinction.  See Bazen, 388 S.C. at 65, 693
S.E.2d at 440 (Ct. App. 2010) (noting only issues raised to and ruled upon by
the Commission are cognizable on appeal).

AFFIRMED.

HUFF, PIEPER,
and LOCKEMY, JJ., concur.