Floyd v. Ken Baker Used Cars

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

Betty Joe Floyd as Personal Representative of the Estate
of Scottie W. Floyd, deceased, Employee, Appellant,

v.

Ken Baker Used Cars, Employer, and Legion Insurance
Company, in liquidation, South Carolina Property &
Casualty Insurance Guaranty Association, Carrier, and
AmGuard Insurance Company, Carrier, Respondents.

Appellate Case No. 2012-209586

Appeal From Marion County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2013-UP-251
Heard June 4, 2013 – Filed June 19, 2013

AFFIRMED

Steve Wukela, Jr., of Wukela Law Office, of Florence,
for Appellant.

Edwin Pruitt Martin, Jr., of Hedrick Gardner Kincheloe
& Garofalo, LLP, of Columbia, for Respondent Ken
Baker Used Cars & Amguard Insurance Company; Peter
P. Leventis, IV and Mark Davis Cauthen, both of McKay
Cauthen Settana & Stubley, PA, of Columbia, for
Respondent Legion Ins. Co., South Carolina Property &
Casualty Insurance Guaranty Association.

PER CURIAM: In this workers' compensation action, after an injured employee,
Scottie Wayne Floyd (Decedent), passed away more than six years after his
original injury, his mother and personal representative of his estate, Betty Joe
Floyd (Mother), alleged he was entitled to a permanent award for the loss of use of
the brain and back as well as permanent disability and also lifetime benefits and
thus she was now eligible for benefits. She contends his discontinuation of seizure
medicine was the proximate cause of his death in September 2008, not the 2001
workplace accident that caused the seizures. Mother appeals circuit court's
affirming the Appellate Panel of the Workers' Compensation Commission's denial
of her claims. We affirm.

1. The Appellate Panel did not err in finding Decedent's death was the
proximate result of the September 13, 2001 workplace accident because substantial
evidence supports that decision. See Shuler v. Gregory Elec., 366 S.C. 435, 440,
622 S.E.2d 569, 571 (Ct. App. 2005) (holding the Appellate Panel's decision must
be affirmed if supported by substantial evidence in the record); see also Shealy v.
Aiken Cnty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (holding in workers'
compensation cases, the Appellate Panel is the ultimate finder of fact); Bass v.
Kenco Grp., 366 S.C. 450, 458, 622 S.E.2d 577, 581 (Ct. App. 2005) (holding the
final determination of the weight to be accorded evidence is reserved for the
Appellate Panel); Hargrove v. Titan Textile Co., 360 S.C. 276, 290, 599 S.E.2d
604, 611 (Ct. App. 2004) (determining that when the evidence conflicts over a
factual issue, the findings of the Appellate Panel are conclusive); Stone v. Traylor
Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004) (finding this court
may not substitute its judgment for that of the Appellate Panel as to the weight of
the evidence on questions of fact).

2. The Appellate Panel did not err in determining Mother is not in the class of
persons who the Act deems to be conclusively wholly dependent for support on
Decedent in derogation of section 42-9-140(B) of the South Carolina Code.
Section 42-9-140(B) of the South Carolina Code (Supp. 2012) provides, "If the
deceased employee leaves no dependents or nondependent children, the employer
shall pay the commuted amounts provided for in Section 42-9-290 for whole
dependents . . . to his father and mother, irrespective of age or dependency."
(emphasis added). Section 42-9-290 of the South Carolina Code (Supp. 2012)
provides, "If death results . . . while total disability still continues and within six
years after the accident, the employer shall pay [benefits] . . . ." (emphasis added).
Because Decedent died more than six years after the original injury, Mother is not
eligible for benefits under section 42-9-140(B). See Gunnells v. Raybestos-
Manhattan, Inc., 261 S.C. 106, 110-11, 198 S.E.2d 535, 536 (1973) ("By the terms
of the statute, the right to such benefits is expressly limited to cases in which 'death
results proximately from an accident and within two years thereafter [o]r while
total disability still continues and within six years after the accident . . . .' . . . .
Unfortunately for claimant, this leaves unfulfilled a further condition precedent to
the accrual of any right to compensation for the death of her husband, I.e., that
such death occur 'within six years after the accident.' . . . . '[T]he right of recovery
is conditioned upon' satisfaction of the requisites of the statute by which the right
was conferred. The requirement of death within six years of the accident not
having been met, the right asserted never vested in the claimant." (first ellipses by
court) (citations omitted)).

3. Finally, the Appellate Panel did not err in (a) finding Mother was not a
dependent and not entitled to benefits Decedent would have received "had he
lived" for loss of use of his back and brain pursuant to sections 42-9-30 and -280 of
the South Carolina Code and Regulation 67-1101(C) of the South Carolina Code;
(b) failing to find that prior to Decedent's death he had a permanent 20% loss of
use of the back, arising out of the compensable accident of April 9, 2004, and
pursuant to section 42-9-280, Mother is entitled to the unpaid balance of
compensation Decedent would have been entitled to had he lived, because his
death was from any cause other than the April 9, 2004 injury; (c) in failing to find
that prior to Decedent's death, he had a permanent 85% loss of use of the brain
arising from the admitted September 13, 2001 accident, and pursuant to section 42-
9-280, Mother is entitled to the unpaid balance of compensation he would have be
entitled to if he lived, because his death was from any other cause than his
September 13, 2001 injury; and (d) in failing to award 2,279.4 weeks of benefits
for loss of use of brain to Mother pursuant to section 42-9-30 and Regulation 67-
1101(C).

As stated above, substantial evidence supports the Appellate Panel's determination
Decedent died as a result of the original accident. Therefore, section 4-9-280 does
not apply here. See Stone v. Roadway Express, 367 S.C. 575, 585, 627 S.E.2d 695,
700 (2006) "[Section] 42-9-290 is the applicable statute where the employee dies
from the injury or accident which entitled him to workers' compensation benefits.
It simply has no application to [section] 42-9-280, which applies when . . . the
employee dies from an independent cause.").

Further, section 42-9-280 requires a party to be a dependent to receive benefits
under it. Substantial evidence supports the Appellate Panel's decision that Mother
was not a dependent of Decedent. See Shuler, 366 S.C. at 440, 622 S.E.2d at 571
(holding the Appellate Panel's decision must be affirmed if supported by
substantial evidence in the record); see also Shealy, 341 S.C. at 455, 535 S.E.2d at
442 (holding in workers' compensation cases, the Appellate Panel is the ultimate
finder of fact); Bass, 366 S.C. at 458, 622 S.E.2d at 581 ("The final determination
of witness credibility and the weight to be accorded evidence is reserved for the
[A]ppellate [P]anel."); Hargrove, 360 S.C. at 290, 599 S.E.2d at 611 (determining
that when the evidence conflicts over a factual issue, the findings of the Appellate
Panel are conclusive). Accordingly, Mother was not entitled to benefits under
section 42-9-280. Further, because Decedent's death arose out of the original
accident but transpired more than six years after the accident, Mother is not
eligible for benefits. Moreover, no award was made under sections 42-910 or -30
because Decedent was not found to have reached MMI and was receiving
temporary benefits.

AFFIRMED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.