Overnite Transportation v. SC Second Injury 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 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Overnite
Transportation, Appellant,

v.

South Carolina Second Injury Fund, Respondent,

[IN RE: Kenneth
Teaster, Employee/Claimant

v.

Overnite
Transportation, Employer/Carrier.]

Appeal From Spartanburg County

 Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2008-UP-639

Submitted November 3, 2008 – Filed
November 17, 2008  

AFFIRMED

David Hill Keller, of Greenville, for Appellant.

Latonya Dilligard Edwards, of Columbia, for Respondent.

PER CURIAM: Overnite Transportation (Overnite) appeals from a
circuit court order affirming the Appellate Panel’s finding Overnite was not
entitled to reimbursement from the South Carolina Second Injury Fund (the Fund)
for Kenneth Teaster’s injuries.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:

1.  As to whether Teaster’s accidents involved physical injuries which
resulted in the exacerbation of a pre-existing psychological condition: Stone
v. Roadway Express, 367 S.C. 575, 582, 627 S.E.2d 695, 698 (2006)
(stating an issue must be raised and ruled upon by the Appellate Panel in order
to be considered on appeal).

2.
As to whether Teaster’s mental injuries were entitled to compensation under the
Workers’ Compensation Act pursuant to South Carolina Code section 42-1-160(B):
S.C. Code Ann. § 42-1-160(B) (Supp. 2007) (stating an employee must establish
by a preponderance of the evidence stress, mental injuries, and mental illness
arising out of and in the course of employment and unaccompanied by physical
injury should be considered a personal injury); Gray v. Club Group, Ltd.,
339 S.C. 173, 182, 528 S.E.2d 435, 440 (Ct. App. 2000) (stating a reviewing
court should affirm a decision by the Appellate Panel unless it is clearly
erroneous in view of the substantial evidence of the whole record).

3.  As to whether Teaster’s mental injuries were reimbursable under South Carolina Code section
42-9-400(d)(34)(b) (Supp. 2003):[2] S.C. Code Ann. § 42-9-400(a) (Supp. 2007) (stating if an employee has a
permanent physical impairment and incurs a subsequent disability from an injury
arising out of an in the course of his employment, an employer may be
reimbursed by the Fund if certain statutory conditions are met); S.C. Code Ann.
§ 42-9-400(d)(34)(b) (Supp. 2003) (explaining in order to qualify for reimbursement
an employer must prove: (1) the employee had a pre-existing permanent physical
impairment; (2) the employer had knowledge of employee’s permanent physical
impairment; and (3) the pre-existing permanent impairment  combined with the
subsequent injury to cause impairment in excess of  seventy-eight weeks under
section 42-9-30).

AFFIRMED.[3]

WILLIAMS, PIEPER, and GEATHERS, JJ., concur. 

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

[2] South Carolina Code section 42-9-400(d)(34)(b) (Supp.
2003) was deleted by a 2007 amendment; however, it was applicable at the time
of the alleged injury.

[3] Overnite’s argument that the circuit court
engaged in impermissible fact finding is manifestly without merit, and we
decline to address it.  Rule 220(b)(2), SCACR.