Quick v. Landstar, Inc.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Edward Randy Quick, Employee/Claimant,       
Appellant,

v.

Landstar Poole, Inc., Employer and National Union Fire Insurance Company,
Carrier,        Respondents.

Appeal From Sumter County

Thomas W. Cooper, Jr., Circuit Court
Judge

Opinion No. 2003-UP-141

Submitted January 10, 2003 - Filed February
19, 2003

AFFIRMED

Kristi F. Curtis, Esquire, Joseph T. McElveen Jr.; for Appellant.

Darryl D. Smalls,; for Respondents.

PER CURIAM: In this workers’ compensation
action, the appellate panel of the Workers’ Compensation Commission (Commission)
found Edward Quick was entitled to sixteen percent (16%) permanent partial disability
to the back and twelve percent (12%) permanent partial disability to the right
upper extremity.  The trial court affirmed.  Quick appeals this finding.  We
affirm. 

FACTS

Quick, a long-distance truck driver and trainer, sustained
injury to his back and right shoulder after he slipped and fell while training
a new Landstar employee.  Over the next two years, Quick was treated for recurring
back and shoulder pain, and Landstar provided Quick with temporary total disability
payments.  Meanwhile, Quick could not maintain his $75,000 per year job as a
long-distance driver/trainer, and became a single driver for $50,000 per year. 
However, Quick eventually quit working for Landstar in favor of becoming a local
shuttle driver for $40,000 per year, so that he would be able to care for his
two children.  After Quick reached maximum medical improvement, he moved for
a determination of whether he was entitled to permanent partial disability. 

A single Commissioner noted Quick was not on prescription
medication and had not undergone surgery.  The Commissioner also noted Quick’s
testimony that he felt he could return to long-distance truck driving.  The
Commissioner concluded Quick was entitled to eight percent (8%) permanent partial
disability to his back and eight percent (8%) permanent partial disability to
the upper extremity.  The appellate panel of the Commission found Quirk was
entitled to sixteen percent (16%) permanent partial disability to the back and
twelve percent (12%) permanent partial disability to the right upper extremity. 
The Commission based the award on S.C. Code Ann. § 42-9-30 (1985 & Supp.
2002), the “scheduled disability” statute. 

Quick appealed to the circuit court, alleging the
Commission erred in making findings of fact under the “scheduled disability”
statute, rather than under S.C. Code Ann. § 42-9-20 (1985), the “general disability”
statute.  The circuit court judge remanded the case to the Commission for consideration
of whether Quick was entitled to compensation under the general disability statute. 
The Commission then determined Quick was ineligible for benefits under the general
disability statute, finding instead that the provisions of the scheduled disability
statute were applicable.  The Commission reiterated its prior finding of a sixteen
percent (16%) permanent partial disability to the back and twelve percent (12%)
permanent partial disability to the right upper extremity.  The trial judge
affirmed the Commission.  Quick appeals. 

STANDARD OF REVIEW

The Administrative Procedures Act establishes
the standard of review for decisions by the South Carolina Workers’ Compensation
Commission.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304,
306 (1981).  An appellate court may reverse or modify a decision if the findings
or conclusions of the commission are “clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record.”  S.C. Code Ann. §
1-23-380(A)(6) (Supp. 2001); see Brunson v. Wal-Mart Stores, Inc.,
344 S.C. 107, 110, 542 S.E.2d 732, 733 (Ct. App. 2001).  “Substantial evidence
is evidence which, considering the record as a whole, would allow reasonable
minds to reach the conclusion that the administrative agency reached to justify
its action.”  Stokes v. First Nat’l Bank, 306 S.C. 46, 50, 410 S.E.2d
248, 251 (1991).

LAW/ANALYSIS

Quick argues the trial judge erred in affirming the
Commission’s determination that he was not entitled to consideration under the
general disability statute.  We do not agree.

The scheduled loss statute reads:  “[i]n
cases included in the following schedule, the disability in each case shall
be deemed to continue for the period specified and the compensation so
paid for such injury shall be as
specified therein. . . .”   S.C. Code Ann. § 42-9-30 (1985 &
Supp. 2002) (emphasis supplied).  Injuries to the back and upper extremity are
included in this statute.  See id. at § 42-9-30(19)-(20).

The Commission “may award compensation to
a claimant under the scheduled loss statute rather than the general disability
statutes so long as there is substantial evidence to support such an award.” 
Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172,
173 (1990).  An award under the scheduled loss statute is premised upon the
threshold requirement that the claimant prove a loss, or loss of use of, a specific
“member, organ, or part of the body.”  Id. at 556, 393 S.E.2d at 173.   

We find there was substantial evidence
to justify the Commission’s decision to award benefits under the scheduled loss
statute.  Quick’s claim clearly falls under the mandatory language of § 42-9-30. 
He specifically claimed impairment to his back and right upper extremity in
his original and amended Form 50 filings with the Commission.  In his testimony
before the Commission, Quick complained of pain in his spine, back, and  shoulder. 
His medical records indicate treatment for injury and impairment to these areas.

Further, Quick cannot prove a loss of
earning capacity, which is required to prevail under § 42-9-20.  See
Fields, 301 S.C. at 555, 393 S.E.2d at 173 (stating “[i]t is well-settled
that an award under the general disability statutes must be predicated upon
a showing of a loss of earning capacity, whereas an award under the scheduled
loss statute does not require such a showing.”).  Quick testified that he had
taken a job as a local truck driver for an annual salary of $40,000.  He had
been earning an annual salary of $75,000 as a long-distance driver and trainer. 
However, Quick testified that he had taken a voluntary reduction in his income
in order to care for his children, and that he would be able to work as a long-distance
truck driver.  Quick’s voluntary reduction in his income does not go to prove
a loss of earning capacity.  As such, Quick cannot sustain recovery under §
42-9-20.  See Fields, 301 S.C. at 555, 393 S.E.2d at 173. 

Accordingly, the trial judge did not err
in affirming the Commission’s decision to award permanent partial disability
under S.C. Code Ann. § 42-9-30.

CONCLUSION

Based on the foregoing, the decision of the circuit
court is

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.