Menie v. State Accident Fund

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

Alvin L. Menie, Appellant,

v.

State Accident Fund, Respondent.

Appellate Case No. 2016-001031

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2018-UP-428
Submitted October 1, 2018 – Filed November 21, 2018

AFFIRMED

Preston F. McDaniel, of McDaniel Law Firm, of
Columbia, for Appellant.

Andrew Elliott Haselden, of Howser Newman & Besley,
LLC, of Charleston, for Respondent.

PER CURIAM: In this workers' compensation case, Alvin L. Menie appeals the
order of the circuit court affirming the order of the Appellate Panel of the Workers'
Compensation Commission (the Appellate Panel), arguing (1) the Appellate Panel
erred by finding his heart condition was not compensable because it was due to the
unusual and extraordinary conditions of his employment, (2) the Appellate Panel
erred by relying on the irrelevant testimony of Kirk Adair and Gerald Murphy, (3)
the single commissioner erred by making a general finding that the conditions of
his employment were common, and (4) the circuit court erred by relying on the
report of Dr. Michael Zile because it was based on hearsay. We affirm.

First, we agree with the circuit court's finding that substantial evidence supports the
Appellate Panel's decision regarding the compensability of Menie's injury. See
Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 610–11 (Ct.
App. 2004) (explaining this court's standard of review is limited to deciding
whether the decision is unsupported by substantial evidence or is controlled by an
error of law). We find Menie did not meet his burden of proving his work
conditions were unusual and extraordinary. See Watt v. Piedmont Auto., 384 S.C.
203, 208, 681 S.E.2d 615, 618 (Ct. App. 2009) ("The general rule is that a heart
attack is compensable as a worker[s'] compensation accident if it is induced by
unexpected strain or overexertion in the performance of the duties of a claimant's
employment or by unusual and extraordinary conditions of employment." (quoting
Jordan v. Kelly Co., 381 S.C. 483, 486, 674 S.E.2d 166, 168 (2009))). Although
Menie testified his work load tripled during January to March 2003, he also
testified he would not be reprimanded if he did not complete the audits and his
stress was self-imposed. While Holman testified it would be "extremely unusual"
for one auditor to handle all 600 accounts, she also testified they could handle the
accounts for a short period of time. Murphy testified Menie only worked an
average of sixteen minutes more per day in 2003 compared to 2002. Although
Menie testified he dealt with a lot of angry policyholders in January due to the rate
increase, Murphy testified over half of the policyholders paid their new premiums
by January 10, 2003. The single commissioner and the Appellate Panel found
Murphy to be a credible witness. See Ross v. Am. Red Cross, 298 S.C. 490, 492,
381 S.E.2d 728, 730 (1989) ("The final determination of witness credibility and the
weight to be accorded evidence is reserved to the [Appellate Panel].").

Furthermore, there was conflicting medical evidence in the record as to whether
any unusual and extraordinary working conditions caused Menie's atrial
fibrillation. See Jordan, 381 S.C. at 487, 674 S.E.2d at 169 (explaining when "the
record contains conflicting evidence, this [c]ourt is not in a position to weigh the
evidence presented in a workers' compensation hearing"). Dr. Hendricks opined
the stress of Menie's job caused his heart condition. However, as the circuit court
noted, Dr. Hendricks's opinion was based on facts as presented by Menie in the
questionnaire. In contrast, Dr. Zile opined "pre-existing and underlying
cardiovascular disease processes" caused Menie's atrial fibrillation. Moreover,
because there was substantial evidence to support the circuit court's order, the
circuit court did not err in stating that labor turnover, coworker illness, and
computer problems were common to other types of employment. The circuit court
relied on the evidence in the record to support its conclusion; therefore, we
disagree with Menie's argument that the circuit court was biased against his
argument. Accordingly, the circuit court did not err in affirming the Appellate
Panel's order. See Watt, 384 S.C. at 209–11, 681 S.E.2d at 618–20 (finding
substantial evidence supported the Appellate Panel's finding that a claimant's heart
condition was not compensable where there was conflicting evidence in the
record).

Second, we disagree with Menie's argument that the Appellate Panel and circuit
court erred in relying on the testimony of Adair and Murphy. Menie filed a motion
for reconsideration regarding the admission of Adair's testimony and the circuit
court granted his motion. The circuit court issued a new order finding the
Appellate Panel erred in admitting the testimony but the error was harmless
because there was substantial evidence, without Adair's testimony, to support the
Appellate Panel's order. We agree that substantial evidence supports the Appellate
Panel's findings regardless of Adair's testimony. As to Murphy's testimony, we
find this argument is not preserved. Menie's only objections to Murphy's
testimony at the hearing were based on Murphy speculating as to why Menie
received a raise and what effect the rate increase would have on Menie's job.
Menie did not argue that Murphy's testimony should be excluded because it was
irrelevant to the time period at issue in the case. Because this issue was never
raised to the single commissioner, we find it is not preserved. See Stone v.
Roadway Express, 367 S.C. 575, 582, 627 S.E.2d 695, 698 (2006) ("Only issues
raised and ruled upon by the [Workers' Compensation C]ommission are cognizable
on appeal.").

Finally, we find Menie's argument that the circuit court erred in relying on Dr.
Zile's medical report because it was inadmissible hearsay is also unpreserved. See
Rodney v. Michelin Tire Corp., 320 S.C. 515, 517, 466 S.E.2d 357, 358 (1996)
("Arguments not raised to the [Appellate Panel] or to the circuit court are not
preserved for appeal."). At the hearing before the single commissioner, Menie
objected to an article attached to Dr. Zile's report because it was hearsay. He then
asked the commissioner to consider the fact that the doctor never saw Menie, but
he did not raise this argument as a reason to exclude the report. Moreover, the
circuit court relied on Dr. Zile's report in the initial order to support its finding that
substantial evidence supported the Appellate Panel's order. Although Menie filed a
motion to reconsider, he did not raise his argument regarding Dr. Zile's report.
Thus, this argument is not preserved.
Accordingly, the order of the circuit court is

AFFIRMED.1

LOCKEMY, C.J., and THOMAS and GEATHERS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.