Peek v. SCE&G

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

Jason Roy Peek,
Employee, Appellant,

v.

South Carolina
Electric & Gas, Self-Insured Employer, Respondent.

Appeal From Calhoun County

 Diane Schafer Goodstein, Circuit Court
Judge

Unpublished Opinion No. 2011-UP-398

Submitted August 1, 2011 – Filed August 19,
2011   

AFFIRMED

David T. Pearlman and J. Kevin Holmes, both of Charleston, for
Appellant.

Kirsten Leslie Barr, of Mount Pleasant, for Respondent.

PER CURIAM:  In this workers' compensation case, Jason
Roy Peek appeals the circuit court's order that affirmed the decision of the Appellate
Panel of the South Carolina Workers' Compensation Commission (the Appellate
Panel) to award Peek permanent partial disability for his back injury.  Peek
argues the circuit court erred in: (1) affirming the Appellate Panel's decision
even though the Appellate Panel's order failed to make sufficient findings of
fact concerning whether Peek suffered permanent total disability under section
42-9-30(21) of the South Carolina Code (Supp. 2010); (2) making its own
findings of fact concerning whether Peek suffered from permanent total
disability under section 42-9-30(21); and (3) denying Peek a lump sum payment
for his disability benefits.  We affirm.[1]

1.  We find the circuit court
properly affirmed the Appellate Panel's decision to award Peek permanent
partial disability.  The Appellate Panel
"must make specific findings of fact upon which a claimant's right to
compensation are based" in its award.  Nettles v. Spartanburg Sch.
Dist. # 7, 341 S.C. 580, 590, 535 S.E.2d 146, 151 (Ct. App. 2000); see
also S.C. Code Ann. § 42-17-40(A) (Supp. 2010) (providing that an award
under the Workers' Compensation Act (the Act) requires the order to include
"a statement of the findings of fact, rulings of
law, and other matters pertinent to the questions at issue").  "The
duty to determine facts is placed solely on the [Appellate Panel] and the court
reviewing the decision of the [Appellate Panel] has no authority to determine
factual issues . . . ."  Fox v. Newberry Cnty. Mem'l Hosp., 319
S.C. 278, 280, 461 S.E.2d 392, 394 (1995). 

Generally,
an employee will be limited to a scheduled recovery for a back injury.  S.C. Code
Ann. § 42-9-30(21) (Supp. 2010).  However, an employee can receive general
disability benefits if the employee can show  his back injury affects other
parts of his body.  Lee v. Harborside Cafe, 350 S.C. 74, 78, 564 S.E.2d 354, 356 (Ct. App. 2002).  Section 42-9-30(21) also permits an award for
permanent total disability for a back injury when the employee suffers from a
fifty percent or more loss of the use of the back.   Additionally, an employee
must show a loss of earning capacity in order to receive an award under the
general disability sections.  Fields v. Owens Corning Fiberglas, 301
S.C. 554, 555, 393 S.E.2d 172, 173 (1990).         

Here, the Appellate Panel properly provided specific
findings of fact concerning its decision to award Peek permanent partial
disability.  See Nettles, 341 S.C. at 587, 535 S.E.2d at 149.  In
the single commissioner's order, he found Peek was entitled to permanent
partial disability because Peek suffered from a loss of earning capacity.  In
support, the single commissioner cited to the testimony of Price, a certified
rehabilitation counselor, concerning Peek's employment prospects. 
Additionally, the single commissioner noted Peek suffered from a scheduled
injury that affected other parts of his body.  The Appellate Panel affirmed the
single commissioner's finding and noted the scheduled back injury affected
Peek's legs. 

Substantial
evidence supports the Appellate Panel's decision.  Peek presented evidence that
he suffered from a scheduled injury that affected other parts of his body. 
Peek testified that he continued to suffer from back and leg pain.  Peek's physician,
Dr. Donald Johnson, also indicated Peek would have to take intermittent muscle
relaxers and pain medications for his chronic pain.  Substantial evidence also exists
to support the Appellate Panel's finding that Peek suffered from a loss of wage
earning capacity.  Price believed Peek's employment prospects were limited due
to his lack of transferable occupational skills and physical limitations. 
Consequently, Price estimated Peek was capable of only non-skilled or
semi-skilled work making $8 an hour. 

2.  We find the circuit court did not
err in making its own findings of fact concerning whether Peek suffered from
permanent total disability under section 42-9-30(21).  An employee cannot recover
under both general disability and scheduled member sections.  Fields, 301
S.C. at 555, 393 S.E.2d at 173. Furthermore, the reviewing court is not
concerned with whether the Appellate Panel awarded benefits under the general
disability section or scheduled member section.  Roper v. Kimbrell's of Greenville, Inc., 231 S.C. 453, 455-56, 99 S.E.2d 52,
53-54 (1957). The reviewing court is
concerned with whether substantial evidence exists to support the Appellate
Panel's award.  S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2010).  Thus, Peek's
argument that the circuit court improperly made findings of fact concerning
Peek's permanent total disability claim is without merit.  The Appellate Panel
only needs to make specific findings of fact concerning its basis for an award.
 See Roper, 231 S.C. at 455-56, 99 S.E.2d at 53-54.  Consequently, the circuit court's findings of fact
concerning Peek's permanent total disability claim have no effect on the
circuit court's ultimate decision to affirm the Appellate Panel's permanent
partial disability award, which was supported by substantial evidence.

3.  We find the circuit court did not
err in affirming the Appellate Panel's decision to deny Peek a lump sum
payment.  The Appellate Panel has discretion to determine whether a lump sum
award would be appropriate.  See S.C. Code Ann. § 42-9-301 (1976)
(providing the court may award a lump sum payment for workers' compensation
claims); see also Thompson v. S.C. Steel Erectors, 369 S.C. 606,
612, 632 S.E.2d 874, 878 (Ct. App. 2006) (finding this court looks for
whether the Appellate Panel abused its discretion when making its decision
concerning lump sum payments).  Peek's argument that lump sum payment must be
awarded if it is in the employee's best interests is unpersuasive because the employee's
best interest is just one part of the analysis.  The reviewing court must also
consider whether the lump sum payment would prevent an undue hardship upon the
employer without prejudicing the employee's interest.  No evidence supports a
finding that the Appellate Panel's refusal to not award a lump sum payment was
not in Peek's best interests.  Additionally, the Appellate Panel properly
determined that any lump sum award would be based upon
surmise, conjecture, or speculation because Peek's future earnings were
unknown.  See Hutson v. State Ports
Auth., 390 S.C. 108, 113, 700 S.E.2d
462, 465 (Ct. App. 2010) (holding the award of a lump sum payment "may not be based upon surmise, conjecture, or speculation,
but must be founded on evidence of sufficient substance to afford a reasonable
basis for it" (citation and internal
quotation marks omitted)).  

Accordingly, the decision of the circuit court is

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.

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