Zepeda-Cepeda v. Priority Landscaping

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

Ramone Zepeda-Cepeda, Appellant,

v.

Priority Landscaping and
Lawn Care, LLC, Employer, and Accident Fund Insurance Company of America,
Carrier, Respondents.

Appeal
From the South Carolina Workers' Compensation Commission

Appellate
Panel

Unpublished
Opinion No. 2011-UP-229

Submitted
April 1, 2011 – Filed May 18, 2011   

AFFIRMED

Don
C. Gibson, of North Charleston, for Appellant.

Mikell
H. Wyman, of Charleston, for Respondents.

PER CURIAM:  In this
workers' compensation case, Appellant Ramone Zepeda-Cepeda (Claimant) seeks
review of a decision of the South Carolina Workers' Compensation Commission (Commission)
denying his request for temporary total disability benefits and payment of
medical expenses for an injury to his right leg.  Claimant challenges the
Appellate Panel's finding that his injury did not arise out of and in the
course of his employment because he was engaging in horseplay when the injury
occurred.  We affirm.[1]

FACTS/PROCEDURAL
HISTORY

In
March 2007, Claimant began working for Priority Landscaping and Lawn Care, LLC
(Employer), located in Folly Beach.  Among other equipment, Employer provided
Claimant and his co-workers with a pole saw and extension ladders for
trimming tree branches.  If a branch was so high that it could not be reached
while using an extension ladder and a pole saw, Employer
would subcontract out that particular work to Budget Tree Service (Budget).      

On
September 4, 2008, Employer assigned Claimant to a crew of four to perform work
on the grounds at Fort Johnson Baptist Church.  The other three workers were Leonardo
Solano (Leonardo), Frank Shoppel (Frank), and Cesar Rodriguez (Cesar).  Frank supervised the crew, and
Cesar interpreted
Frank's English into Spanish for Claimant and Leonardo.  The crew arrived at
the location at approximately 12:45 p.m. and ate lunch before beginning work.

According
to Claimant, as he
began work at the location, Cesar told him that Frank wanted him to
climb a large oak tree to trim one of its branches.  Claimant climbed up to a
large branch approximately twenty feet off the ground.  He began walking along
the branch and was expecting one of his co-workers to hand him a tool once he
was near the branch to be trimmed.  However, he lost his balance and fell to
the ground. 

The
hearing testimony of Frank and Cesar provided a different version of the events
leading up to Claimant's injury.  They both testified that Employer never
assigned branch trimming for those branches that could not be reached with the
pole saw and extension ladder.  They further testified that on the day of the injury,
Frank never asked Cesar to tell Claimant to trim any branches on
the tree in question.  Rather, they testified that Cesar offered Claimant a
twenty-dollar bet that he would not jump out of the oak tree from a limb hovering
twenty feet off the ground.  Claimant quickly accepted the bet, climbed up the
tree, and began walking out on the limb.  He then "cradled" the limb,
turned over, hung off the
branch, and deliberately dropped to the ground. 

It
is undisputed that Claimant landed on his feet and limped over to the truck in
which the crew rode to the location.  He then began to feel pain in his right
leg.  Frank
called Employer's owner, William Hampton (Owner), to determine how to respond
to Claimant's injury.  Frank also asked Cesar to advise Claimant that he should
tell others he stepped in a hole.  Employer's secretary drove Claimant to
Doctor's Care and later took him to a local hospital for further treatment. 
The next day, Frank gave a written statement to Owner's wife.  In the
statement, Frank alleged that Claimant had climbed the tree without being
instructed to do so and that the tree in question was not the type of tree that
Employer would maintain.  Frank also stated "It appears that [Claimant]
climbed the tree for fun.  He was injured when he jumped or fell out of the
tree." 

Claimant sought temporary
total disability benefits as well as payment of all medical expenses related to
his leg injury.  Employer and its insurer, Accident Fund Insurance Company of
America (Carrier), contested the claim on the ground that Claimant had been
engaging in horseplay when he injured his right leg.  The Single Commissioner
found that Claimant was not engaging in horseplay and awarded Claimant the
requested benefits.  The Appellate Panel reversed the award, finding that
Claimant was in fact engaging in horseplay, and, therefore, his injury did not
arise out of and in the course of his employment.  This
appeal followed.  

ISSUE ON APPEAL

Was
the Appellate Panel's finding that Claimant's injury did not arise out of and
in the course of his employment supported by substantial evidence when the
testimony on which the Appellate Panel relied was purportedly not credible?[2]

STANDARD
OF REVIEW

The South Carolina
Administrative Procedures Act establishes the standard for judicial review of
decisions by the Appellate Panel of the Workers' Compensation Commission.  See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304,
306 (1981).  Specifically, section 1-23-380 of the South Carolina Code
(Supp. 2010) provides that this court may not substitute its judgment for that
of the Appellate Panel as to the weight of the evidence on questions of fact,
but may reverse when the decision is affected by an error of law.[3]  See Hamilton v.
Bob Bennett Ford, 336 S.C. 72, 76,
518 S.E.2d 599, 600-01 (Ct. App. 1999), modified on other grounds,
339 S.C. 68, 528 S.E.2d 667 (2000) (interpreting section
1-23-380).  Section 1-23-380 allows reversal of a factual finding of the
Appellate Panel only if it is "clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record."

In workers' compensation cases, the Commission
is the ultimate factfinder.  This Court must affirm the findings of fact made
by the full commission if they are supported by substantial evidence.  Substantial
evidence is not a mere scintilla of evidence, but evidence which, considering
the record as a whole, would allow reasonable minds to reach the conclusion the
agency reached.

Pierre v. Seaside Farms,
Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010) (internal citations
and quotations marks omitted).

LAW/ANALYSIS

Claimant
contests the Appellate Panel's finding that his injury did not arise out of and
in the course of his employment.  He argues that this finding is not supported
by substantial evidence because his supervisor, Frank, and his interpreter, Cesar, who
both testified that Claimant jumped out of a tree on a bet, had no
credibility.  Claimant asserts that Cesar and Frank admitted in the hearing
before the Single Commissioner that they did not initially tell the truth about
how Claimant injured himself.  Therefore, Claimant argues, their hearing testimony
could not be believed.  We disagree.

"In
workers' compensation cases, the Full Commission is the ultimate fact finder."  Shealy v. Aiken County, 341 S.C. 448, 455, 535
S.E.2d 438, 442 (2000).  "The final determination of
witness credibility and the weight to be accorded evidence is reserved to the
Full Commission."  Id.  "It is not the task of this Court to
weigh the evidence as found by the Full Commission."  Id.

Further, the trier of fact has the prerogative to believe one part of a
witness's testimony while simultaneously disbelieving other parts of the same
witness's testimony.  See Holcombe v. Dan River Mills,
286 S.C. 223, 225, 333 S.E.2d 338, 340 (Ct. App. 1985) ("The Commission in workers' compensation cases sits as a jury does.
It is elementary that a jury may believe part or all of a witness's testimony[.]"). 
Therefore, Claimant's argument that the testimony of Frank and Cesar cannot
constitute substantial evidence because they admitted to previous
misrepresentations is unconvincing.  The Appellate Panel could have believed
the testimony of Cesar and Frank that they were afraid they would lose their jobs
if Employer learned that Claimant climbed the tree on a bet from Cesar and that
Frank allowed this to happen.      

Additionally,
Owner's testimony supported the Appellate Panel's finding that Claimant's
injury did not arise out of and in the course of his employment.  Owner stated
that the only time that his workers would attempt to trim a large oak tree was
when it could be done with an extension pole saw and a stepladder and when the
limb was not too big.  Owner also testified that his standard practice was to
subcontract out to Budget the trimming of any out-of-reach branches; and, that he
had in fact used Budget for the very property on which Claimant and his
co-workers were located on the day of the injury.    

Claimant
also argues that the Appellate Panel made no credibility findings, and, as a
result, the Single Commissioner's finding that the testimony of Frank and Cesar
was not credible was left undisturbed.  Hence, Claimant asserts, this court
should give deference to the Single Commissioner's credibility determination. 
We disagree.  In the fifth finding of fact of the Appellate Panel's decision,
it relied on the testimony of Frank and Cesar.  Therefore, there is no question
that the Appellate Panel found this testimony to be credible.  As stated
earlier, this court is required to give deference to the Appellate Panel's
credibility determination.  See Shealy,
341 S.C. at 455, 535 S.E.2d at 442 ("The final
determination of witness credibility and the weight to be accorded evidence is
reserved to the Full Commission.").

Based on the
foregoing, the evidence in the record would allow reasonable minds to reach the
conclusion the Appellate Panel reached—that Claimant was engaging in horseplay,
and, thus, his injury was not compensable.  See Jones
v. Hampton Pontiac, 304 S.C. 440, 441-42, 405 S.E.2d 395, 395-96 (1991)
(holding that an employee's demonstration of a karate kick, while on break, did not
give rise to his injury as a natural incident of the work, and, therefore, his
injury was not compensable).  Hence, the Appellate Panel's finding
that Claimant's injury did not arise out of and in the course of his employment
was supported by substantial evidence.  See Pierre, 386 S.C. at 540,
689 S.E.2d at 618 ("Substantial evidence is not a mere scintilla of evidence, but evidence
which, considering the record as a whole, would allow reasonable minds to reach
the conclusion the agency reached.") (internal citations
and quotation marks omitted) (emphasis added).

CONCLUSION

Accordingly, the
Appellate Panel's decision is 

AFFIRMED.

WILLIAMS,
GEATHERS, and LOCKEMY, JJ., concur.

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

[2] A claimant's
injury must arise out of his employment and occur in the
course of his employment.  Beam v. State Workmen's
Compensation Fund, 261 S.C. 327, 331, 200
S.E.2d 83, 85 (1973). 

The two elements must co-exist. They must be concurrent and
simultaneous. One without the other will not sustain an award; yet the two are
so entwined that they are usually considered together in the reported cases;
and a discussion of one of them involves the other.

As is generally held,
the words "arising out of" refer to the origin of the cause of the
accident, while the words "in the course of
employment," have reference to the time, place and circumstances under
which the accident occurs.

Douglas v. Spartan Mills,
245 S.C. 265, 268-69, 140 S.E.2d 173, 174-75 (1965) (internal citation and
quotation marks omitted).

[3] The
pertinent language of section 1-23-380 is as follows:

The
court may not substitute its judgment for the judgment of the agency as to the
weight of the evidence on questions of fact. The court may affirm the decision
of the agency or remand the case for further proceedings. The court may reverse
or modify the decision if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions, or
decisions are:  (a) in violation of constitutional or statutory provisions; (b)
in excess of the statutory authority of the agency; (c)
made upon unlawful procedure; (d)
affected by other error of law; (e)
clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or (f)
arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.