Dority v. MeadWestvaco

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

Thomas E.
Dority, Respondent,

v.

MeadWestvaco, Appellant.

Appeal From Charleston County

R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No. 2011-UP-017

Heard December 8, 2010 – Filed January 25,
2011   

REVERSED AND REMANDED

Kirsten Leslie Barr, of Mt. Pleasant; for Appellant.

David T. Pearlman, of Charleston; for Respondent.

FEW, C.J.: This case is decided pursuant to Rule 220(b), SCACR.  MeadWestvaco appeals the circuit's court order
reversing the appellate panel of the workers' compensation commission and
reinstating the order of the single commissioner.  We reverse.

In 2005, Dority filed a
workers' compensation claim against MeadWestvaco alleging he suffered an
accidental injury to his ears as the result of "working in [a] noisy
area."  The single commissioner found that Dority suffered a compensable
work related hearing loss injury.  The appellate panel vacated the single
commissioner's order for failure to include sufficient findings of fact and
remanded the matter.  On remand, a single commissioner concluded that Dority
"established by a preponderance of the evidence that he sustained an
injury by accident arising out of and in the course of his employment with the
Defendant to both ears."  The appellate panel reversed and dismissed
Dority's claim, finding "Claimant's current hearing loss and need for
hearing aids was not caused by any injury, accident or injurious exposure
arising out of or in the course of his employment with MeadWestvaco." 

Dority filed a petition for
judicial review.[1]  The circuit court
reversed the decision of the appellate panel based on two errors of law: 1) an
improper limitation of what constitutes "injury by accident" and 2)
an improper application of the "last injurious exposure rule."  In
addition, the circuit court ruled that the facts were "undisputed,"
made a finding that the claimant suffered a compensable injury by accident as a
matter of law, and reinstated the single commissioner's order. 

MeadWestvaco contends that
the circuit court erred in finding that the
"undisputed facts established that [Dority] sustained a compensable injury
by accident in 2004 as a matter of law" and in reinstating the single
commissioner's order.  We agree.

While the circuit court is
authorized to reverse the appellate panel when it makes errors of law, the appellate panel of the workers' compensation
commission is the ultimate finder of facts.  Grant v. Grant Textiles, 372
S.C. 196, 200-01, 641 S.E.2d 869, 871 (2007); Shealy
v. Aiken County, 341 S.C. 448, 455,
535 S.E.2d 438, 442 (2000).  A circuit court is not permitted to substitute its
judgment for the judgment of the workers' compensation commission as to the
weight of evidence on questions of fact.  S.C. Code Ann. § 1-23-380(A)(5)
(2008).  If there is conflicting evidence with regard to factual issues, the
factual findings must be made by the appellate panel.  See Baldwin v. James River Corp., 304 S.C. 485, 486-87, 405 S.E.2d 421, 422 (Ct. App. 1991)
(vacating the circuit court's order and holding that by reinstating a single
commissioner's order, the circuit court effectively determined facts from
conflicting evidence).

The evidence presented as to
whether Dority suffered a compensable injury is disputed.  For example, one
medical doctor testified Dority's hearing loss is attributable to noise
exposure and another medical doctor concluded that Dority "does not have
any occupationally induced hearing loss."    Because the evidence as to
this factual issue is in conflict, it was improper for the trial court to
determine that Dority suffered a compensable injury as a matter of law.

Neither of the circuit
court's legal rulings were appealed; thus, they are the law of the case.  See Eadie v. Krause, 381 S.C. 55, 66, 671 S.E.2d 389, 394 (Ct. App. 2008)
(citing Charleston Lumber Co. v. Miller Hous. Corp., 338 S.C. 171, 175,
525 S.E.2d 869, 871 (2000) (noting "an unchallenged ruling, right or
wrong, is the law of th[e] case and requires affirmance.") (internal
quotations omitted)).  We reverse and remand to the appellate panel to apply
the circuit court's legal rulings to the facts of this case.

REVERSED AND REMANDED.

SHORT and WILLIAMS, JJ.,
concur.

[1] This claim resulted from an injury that occurred
before July 1, 2007, thus, the circuit court heard the appeal.  See 2007 S.C. Acts 111 (codified as amended at S.C. Code Ann. §
42-17-60 (2007)).