Robles v. Party Reflections, 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

Renee Robles, Employee, Claimant, Appellant,

v.

Party Reflections, Inc., Employer, and Employers
Assurance Company, Carrier, Respondents.

Appellate Case No. 2016-002266

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2019-UP-177
Submitted March 5, 2019 – Filed May 22, 2019

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Mark Reagan Calhoun, Sr., of Calhoun Law Firm, of
Lexington; and Stephen Benjamin Samuels, of Samuels
Law Firm, LLC, of Columbia, both for Appellant.

Christian Stegmaier, Ashley Ryon Kirkham, and Kelsey
Jan Brudvig, all of Collins & Lacy, PC, of Columbia, for
Respondents.

PER CURIAM: Renee Robles injured his back at work and filed a workers'
compensation claim against his employer, Party Reflections (Employer). Robles
appeals the order of the Appellate Panel of the Workers' Compensation
Commission (Appellate Panel), arguing the Appellate Panel erred in (1) basing his
average weekly wage (AWW) on fourteen weeks of wages with Employer, (2)
finding he was not entitled to temporary total disability (TTD) benefits from the
date of his injury until the present, and (3) finding he was not entitled to TTD
benefits as a result of his June independent medical examination (IME). We affirm
in part, reverse in part, and remand.

"On appeal from an appellate panel of the Workers' Compensation Commission,
this [c]ourt can reverse or modify the decision if it is affected by an error of law or
is clearly erroneous in view of the reliable, probative, and substantial evidence in
the whole record." Nicholson v. S.C. Dep't of Soc. Servs., 411 S.C. 381, 384, 769
S.E.2d 1, 2 (2015). "[T]he possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency's finding from being
supported by substantial evidence." Fishburne v. ATI Sys. Int'l, 384 S.C. 76, 85,
681 S.E.2d 595, 600 (Ct. App. 2009) (quoting Palmetto Alliance, Inc. v. S.C. Pub.
Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984)). "In a workers'
compensation case, the Appellate Panel is the ultimate fact-finder." Nicholson,
411 S.C. at 384, 769 S.E.2d at 3. "The final determination of witness credibility
and the weight to be accorded evidence is reserved to the [Appellate Panel]." Ross
v. Am. Red Cross, 298 S.C. 490, 492, 381 S.E.2d 728, 730 (1989). "Where there
are conflicts in the evidence over a factual issue, the findings of the Appellate
Panel are conclusive." Hargrove v. Titan Textile Co., 360 S.C. 276, 290, 599
S.E.2d 604, 611 (Ct. App. 2004).

CALCULATION OF AWW
Robles argues the Appellate Panel erred by using his actual earnings with Party
Reflections to calculate his AWW instead of the fifty-two weeks of earnings
preceding his injury. We disagree.

AWW "means the earnings of the injured employee in the employment in which he
was working at the time of the injury during the period of fifty-two weeks
immediately preceding the date of the injury." S.C. Code Ann. § 42-1-40 (2015).
AWW "must be calculated by taking the total wages paid for the last four quarters
immediately preceding the quarter in which the injury occurred . . . divided by
fifty-two or by the actual number of weeks for which wages were paid, whichever
is less." Id.

When the employment, prior to the injury, extended over
a period of less than fifty-two weeks, the method of
dividing the earnings during that period by the number of
weeks and parts thereof during which the employee
earned wages shall be followed, as long as results fair
and just to both parties will be obtained.

Id. Thus, before the Appellate Panel can use the actual earnings method, "two
predicate conditions must exist": (1) "it must be 'practicable' to use the . . . method"
and (2) "the calculation must yield a result which is 'fair and just to both parties.'"
Pilgrim v. Eaton, 391 S.C. 38, 46, 703 S.E.2d 241, 245 (Ct. App. 2010) (quoting
§ 42-1-40). Although the Appellate Panel "should make factual findings of these
two predicate conditions . . . [i]n some situations . . . it may be clear from the
record that both of the two predicate conditions exist." Id.

We disagree with Robles that the Appellate Panel erred in considering Employer's
argument that Robles's AWW should be based on his actual earnings with
Employer instead of the fifty-two weeks preceding the back injury. While
Employer focused its argument before the single commissioner on the fifty-two
weeks directly preceding Robles's back injury, this was in response to Robles
arguing the commissioner should base his AWW on the fifty-two weeks preceding
his first work-related injury in April 2013. However, in its Form 51 answer to
Robles's request for a hearing, Employer indicated his AWW should be based on
his actual earnings with Employer.

We find the record contains substantial evidence to support the Appellate Panel's
finding that Robles's AWW should be based on his actual earnings because he
worked for Employer less than fifty-two weeks. See Hargrove, 360 S.C. at 289,
599 S.E.2d at 610–11 (stating the substantial evidence rule governs the standard of
review in a workers' compensation decision). The Appellate Panel based Robles's
AWW on the method provided by the statute for when an employee has worked for
an employer less than fifty-two weeks. See § 42-1-40 (explaining the Appellate
Panel should take the actual earnings of an employee and divide it by the number
of weeks worked when an employee worked for an employer for less than a year).
Employer bought the company from Palmetto Party Rentals in December 2013.
However, the record contains little to no evidence about the change between
Palmetto Party Rentals and Employer. Robles testified his supervisors were the
same with the two companies, and Adam Vance testified he worked for both.
Robles also testified he worked the same hours with Employer that he did with
Palmetto Party Rentals but he had a different hourly rate at the two companies.
Despite the overlaps between the employees and the nature of work of Palmetto
Party Rentals and Employer, we find substantial evidence supported the Appellate
Panel's finding that Robles only worked for Employer for fourteen weeks. See
Hargrove, 360 S.C. at 290, 599 S.E.2d at 611 ("Where there are conflicts in the
evidence over a factual issue, the findings of the Appellate Panel are conclusive.").

Although the statute allows the Appellate Panel to deviate from the actual earnings
method when it is not fair to the employee, no evidence shows the actual earnings
method was not fair to Robles. Robles cites to Pilgrim to argue it would be unfair
to ignore previous earnings "every time there was a change in ownership of a
continuously operating business." In Pilgrim, this court found the Appellate Panel
erred in applying the actual earnings method to calculate AWW when the
employee only worked at the employer for less than one week because "29.5 hours
of wage data cannot yield a reasonably accurate calculation of an average that is
designed to be based on a year of data." 391 S.C. at 45–46, 703 S.E.2d at 244–45.
However, in the instant case, Robles worked for Party Reflections for a period of
fourteen weeks. Although Robles made different hourly rates with Palmetto Party
Rentals and Employer, he testified his hourly rate only differed by a dollar. The
Appellate Panel found the actual earnings method was "a fair reflection" of
Robles's earnings and there were no exceptional circumstances to deviate from the
method provided in the statute. We agree and find substantial evidence supports
the Appellate Panel's finding that the actual earnings method was practicable and
fair to Robles. See id. at 46, 703 S.E.2d at 245 (explaining the actual earnings
method must be practicable to use and the calculation must yield a fair result for
both parties).

TTD FROM THE DATE OF THE INJURY UNTIL MMI

Robles argues the Appellate Panel erred in denying his request for TTD because he
was out of work for a period of twenty-nine days—from March 17 to April 14. We
disagree.

"Pursuant to section 42-9-260 [of the South Carolina Code (2015)] and the
accompanying regulations, the entitlement of TTD benefits is premised on a nexus
between the work-related injury and the inability to earn wages. An injured
employee will be entitled to TTD compensation when his incapacity to earn wages
is due to or because of the injury." Pollack v. S. Wine & Spirits of Am., 405 S.C. 9,
15, 747 S.E.2d 430, 433 (2013). "Temporary disability benefits are triggered
'[w]hen an employee has been out of work due to a reported work-related
injury . . . for eight days[.]'" Cranford v. Hutchinson Constr., 399 S.C. 65, 73, 731
S.E.2d 303, 307 (Ct. App. 2012) (quoting S.C. Code Ann. § 42-9-260(A) (Supp.
2011)). "Workers' compensation awards have generally provided for [TTD]
benefits until maximum medical improvement, at which point a claimant receives
permanent partial disability if warranted." O'Banner v. Westinghouse Elec. Corp.,
319 S.C. 24, 28, 459 S.E.2d 324, 326 (Ct. App. 1995). "Once temporary disability
payments are commenced, the payments may be terminated or suspended
immediately . . . if[ ] the employee has returned to work; however, if the employee
does not remain at work for a minimum of fifteen days, temporary disability
payments must be resumed immediately . . . ." S.C. Code Ann. § 42-9-260(B)
(2015). "For [TTD] benefits, a claimant must prove only that work restrictions
prevent him from performing the job he had before the injury, and that his current
employer has not offered him light-duty employment." Lee v. Bondex, Inc., 406
S.C. 97, 102, 749 S.E.2d 155, 157 (Ct. App. 2013).

We find Robles's argument that he was out of work for a period of twenty-nine
days—from March 17 to April 14—is not preserved. The single commissioner
found Robles was only entitled to TTD beginning on April 7 until he reached
MMI. The single commissioner specifically found Employer "complied with the
work restrictions after" the two March doctor's visits. However, Robles did not
appeal this finding to the Appellate Panel. Thus, Robles is precluded from arguing
he was entitled to TTD from the period of time between his injury and April 7. See
In re Morrison, 321 S.C. 370, 372 n.2, 468 S.E.2d 651, 652 n.2 (1996) (noting an
unappealed ruling becomes the law of the case and precludes further consideration
of the issue on appeal).

We also disagree with Robles's argument that he was entitled to TTD beginning on
April 7 until he reached MMI. There is no dispute Employer sent Robles home on
April 7 and he never returned to work with Employer after that date. However, the
April 7 doctor's note indicated Robles could return to work full duty on April 14
and instructed him to make another appointment if he was not better by then.
Robles did not return to the doctor until the June IME. The Appellate Panel found
Robles was released to full duty on April 14. Although Robles argued he did not
understand he would be released to full duty on April 14 if he did not return to the
doctor, the Appellate Panel found Robles (1) answered questions in his deposition
without the use of an interpreter, (2) understood the temporary work restrictions in
the return to work form, and (3) signed the return to work form stating he
understood everything that was in it. We agree and find the record contains
substantial evidence to support the Appellate Panel's findings that Robles was
released to return to work at full duty on April 14. See Nicholson, 411 S.C. at 384,
769 S.E.2d at 3 ("In a workers' compensation case, the Appellate Panel is the
ultimate fact-finder."). Because Robles was only out of work between April 7 and
April 14, a period of seven days, he was not entitled to TTD. See S.C. Code Ann.
§ 42-9-260(A) (2015) (explaining an employee is only entitled to begin receiving
temporary benefits after he has been out of work due to a work-related injury for
eight days). Thus, we find the Appellate Panel did not err in refusing to award
TTD for the period of March 16 until Robles reached MMI.

TTD FROM JUNE IME UNTIL MMI

In the alternative, Robles contends the Appellate Panel erred by not awarding him
TTD as of June 2, 2014, when his IME doctor placed him on work restrictions.
We agree.

"Pursuant to section 42-9-260 [of the South Carolina Code (2015)] and the
accompanying regulations, the entitlement of TTD benefits is premised on a nexus
between the work-related injury and the inability to earn wages. An injured
employee will be entitled to TTD compensation when his incapacity to earn wages
is due to or because of the injury." Pollack, 405 S.C. at 15, 747 S.E.2d at 433.
"Temporary disability benefits are triggered '[w]hen an employee has been out of
work due to a reported work-related injury . . . for eight days[.]'" Cranford, 399
S.C. at 73, 731 S.E.2d at 307 (quoting § 42-9-260(A)).

We find substantial evidence does not support the Appellate Panel's denial of TTD
from June until MMI and reverse on this issue. See Hargrove, 360 S.C. at 289,
599 S.E.2d at 610–11 (stating the substantial evidence rule governs the standard of
review in a workers' compensation decision). Both the single commissioner and
the Appellate Panel found Robles was not at MMI. The Appellate Panel ordered
Employer to provide Robles with a consultation with an orthopedist and any
causally-related medical treatment. Although Robles was able to return to full duty
on April 14 according to the Doctor's Care return to work form, he was written out
of work again on June 2 during the IME with Dr. W. Daniel Westerkam. Dr.
Westerkam gave Robles work restrictions to lift no greater than forty pounds
regularly and twenty pounds frequently and no repetitive bending, stooping,
squatting, or crawling. While it is true Dr. Westerkam evaluated Robles for
separate workers' compensation injuries to his wrist and knee as well as his back,
we find the work restrictions are clearly related to the back because Robles was
able to return to work full duty after his wrist and knee injury. Furthermore, Dr.
Westerkam's restrictions mirror the restrictions Robles received in the past for his
back injury. Although the determination of whether an employee is entitled to
TTD is generally a question for the Appellate Panel, here the Appellate Panel did
not make any findings of fact or consider the work restrictions by Dr. Westerkam.
See Pollack, 405 S.C. at 15–16, 747 S.E.2d at 433 (explaining the determination of
entitlement to TTD is "a quintessential factual question for the fact-finder, the
Commission"). Because Robles cannot work full duty as of the June IME, we find
the Appellate Panel's finding that Robles is not entitled to TTD is unsupported by
substantial evidence. Thus, we reverse and find Robles is entitled to TTD
beginning June 2, 2014, until he reaches MMI and remand for further proceedings
to determine the amount of TTD benefits to which Robles is entitled. See
O'Banner, 319 S.C. at 28, 459 S.E.2d at 326 ("Workers' compensation awards have
generally provided for [TTD] benefits until maximum medical improvement, at
which point a claimant receives permanent partial disability if warranted.").

Accordingly, the order of the Appellate Panel is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.1

HUFF, THOMAS, and KONDUROS, JJ., concur.

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