McGee v. Sovran Construction Company

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Elliott McGee,       
Respondent,

v.

Sovran Construction Company and St. Paul Fire & Marine Insurance
Co., Defendants,

of whom Sovran Construction Company is the       
Appellant.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-494

Submitted June 9, 2003 – Filed August 26, 2003

AFFIRMED

Stanford E. Lacy and Christian Stegmaier, of Columbia, for
Appellant.

Ilene Stacey King, of Columbia, for Respondent.

PER CURIAM: In this workers’ compensation
case, the single commissioner awarded Elliot McGee permanent and total disability
as a result of his work-related injury.  The Full Commission affirmed the single
commissioner’s entire order and found as an additional fact that McGee sustained
more than fifty percent disability to his back.  The circuit court affirmed. 
Sovran Construction Company appeals, arguing the commission’s determination
that McGee was unable to perform employment for which a reasonably stable market
exists was clearly erroneous in view of the reliable and substantial evidence
on the whole record.  Sovran further argues that the commission’s award to McGee
for having sustained an injury to his back with a disability rating of greater
than fifty percent was controlled by error of law.  We affirm. [1]

FACTS

While working for Sovran as a concrete
finisher, McGee fell from a ladder and landed on his neck and shoulder. McGee
went to the emergency room, and was referred to Dr. Dunalp-Deas, who had McGee
undergo an MRI.  The MRI indicated spinal stenosis at L4-L5 and a herniated
disc at L4-L5 and L5-S1. McGee was then referred to a neurosurgeon who diagnosed
lumbar spondylolysis with degeneration of discs and lower back pain possibly
due to a lumbar sprain.   The neurosurgeon referred McGee to a pain specialist
who determined that in addition to his physical ailments, McGee suffered from
anxiety and depression.  The pain specialist believed McGee had reached maximum
medical improvement and referred him to Dr. Troyer for a rating.  Dr. Troyer
found McGee sustained a ten percent whole person impairment and that he could
only perform light duty work and could not kneel, stoop, crawl, or walk as a
part of his job.

McGee has a seventh grade education and
has never obtained a GED.   Besides being a concrete finisher for seventeen
years, the only other work experience he has is in the weave room of a mill. 
In the weave room, McGee had to walk around and lift weaves up onto a hanger.  
McGee testified he would not be able to perform that work anymore because he
was unable to stand for long periods and had numbness and pain in his arms.

The single commissioner found that McGee
sustained “an injury by accident arising out of and in the course and scope
of his employment, resulting in an injury to his back, affecting his legs, arms,
groin area (sexual dysfunction) and causing other symptoms, syndromes and diagnoses
. . . .”  The commissioner found McGee was permanently and totally disabled. 
Sovran appealed to the full commission, arguing (1) the commissioner should
have awarded McGee permanent partial disability under the scheduled member statute,
§ 42-9-30; and (2) the commissioner erred in finding McGee was permanently disabled
under the general disability statute, § 42-9-10, because evidence did not support
the finding that McGee had lost his earning capacity.  The full commission affirmed
the single commissioner’s order and amended it, finding as an additional fact
that McGee sustained more than fifty percent disability to his back. Sovran
appealed to the circuit court, arguing the following grounds:

(1)    Is the commission’s award of 50% to the back supported
by substantial evidence where claimant’s rating was 7% to the spine?

(2)    As a matter of law, is the award of 50% to the back in
this case excessive where the rating to the back was 7% to the spine?

(3)    Did the panel confuse loss of earning capacity under
§ 42-9-10 with impairment under § 42-9-30 in awarding a 50% to the back award
(sic)?

(4)    Is the commission’s Order inadequate under the Administrative
Procedures Act and Hill v. Jones because it does not specify facts upon
which it based its 50% to the back award.

The circuit court found “the decision of the Commission
should be affirmed because the record contains substantial evidence that Respondent
has sustained more than 50% disability to his back.”  (R. 20) Sovran appeals.

 

ISSUES

-
Did the circuit court err in affirming the commission’s determination that McGee
is unable, by training or experience, to perform employment for which a reasonably
stable market exists?

-

Did the circuit court err in affirming the commission’s determination that McGee
sustained an injury to his back with a disability rating of greater than 50%?

SCOPE OF REVIEW

“The South Carolina Administrative Procedures Act
(APA) establishes the standard for judicial review of decisions of the Workers’
Compensation Commission.”  Corbin v. Kohler Co., 351 S.C. 613, 617, 571
S.E.2d 92, 94-95 (Ct. App. 2002) (citing Gibson v. Spartanburg Sch. Dist.
No. 3, 338 S.C. 510, 526 S.E.2d 725 (Ct. App. 2000);  Hamilton v. Bob
Bennett Ford, 336 S.C. 72, 518 S.E.2d 599 (Ct. App. 1999)).  “In an appeal
from the Commission, this Court may not substitute its judgment for that of
the Commission as to the weight of the evidence on questions of fact, but may
reverse where the decision is affected by an error of law.”  Id. at 617,
571 S.E.2d at 95 (citing Hamilton, 336 S.C. at 76, 518 S.E.2d at 601).  
“The appellate court’s review is limited to deciding whether the Commission’s
decision is unsupported by substantial evidence or is controlled by some error
of law.”  Id.  “The findings of an administrative agency are presumed
correct and will be set aside only if unsupported by substantial evidence.”
Id. (citing Hicks v. Piedmont Cold Storage, 335 S.C. 46, 515 S.E.2d
532 (1999); Broughton v. South of the Border, 336 S.C. 488, 520 S.E.2d
634 (Ct. App. 1999)). 

DISCUSSION

Sovran first argues McGee should not have
been found totally and permanently disabled under the general disability statute
because there is no evidence in the record that McGee is unable, by training
or experience, to perform employment for which a reasonably stable market exists. 
This issue is not preserved for appeal.

Sovran’s notice of intent to appeal to
the circuit court states grounds concerning only the commission’s finding that
McGee suffered greater than fifty percent disability to his back; the notice
does not set forth any grounds in opposition to the general disability award
pursuant to § 42-17-60.  Section 42-17-60 of the South Carolina Code (1985),
provides that notice of appeals from the commission to the circuit court must
“state the grounds of the appeal or the alleged errors of law.”  Sovran admits
that it did not list the commission’s award under § 42-9-10 in its notice of
intent to appeal to the circuit court, but orally presented the issue to the
circuit court, thereby amending its grounds for appeal at the hearing.  However,
this purported “oral amendment” occurred on June 11, 2002, well beyond the thirty
days an appellant has to file a notice of appeal in the circuit court.
[2]   See S.C. Code Ann. § 1-23-380(b) (Supp. 2002). 

In Pringle v. Builders Transport,
298 S.C. 494, 381 S.E.2d 731 (1989), Builders Transport filed a notice of intent
to appeal the order of the workers’ compensation commission to the circuit court,
but failed to state the grounds or errors of law that supported its appeal. 
After the time for appeal had expired, Pringle moved to dismiss the case for
lack of subject matter jurisdiction.  The trial judge denied the motion and
allowed Builders Transport to amend the notice of appeal.  The supreme court
reversed, finding the notice of intent to appeal “must direct the court’s attention
to the abuse allegedly committed below, including a distinct and specific statement
of the rulings of which appellant complains.”  Id. at 495, 381 S.E.2d
at 732 (citing Smith v. South Carolina Dept. of Social Svcs., 284 S.C.
469, 327 S.E.2d 348 (1985)).  The court further found that “the policy of liberally
allowing amendment of pleadings does not apply to amendment of a notice of appeal
requested after expiration of the thirty-day statutory period for filing the
appeal.”  Id. at 495-496, 381 S.E.2d at 732.

Here, Sovran attempted to amend its notice
of appeal nearly six months after the full commission’s order awarding McGee
permanent, total disability. [3]  
Because Sovran’s purported amendment occurred after the time for appeal had
expired, we find the issue of whether the commission erred in awarding McGee
benefits under § 42-9-10 was not preserved for review.

Because the commission’s award for permanent,
total disability is affirmable based on section 42-9-10, we need not determine
whether the commission erred in making the additional finding that McGee sustained
an injury to his back with a disability rating of greater than fifty percent. [4]

Accordingly, the decision of the circuit court is

AFFIRMED.

HEARN, C.J., CONNOR and BEATTY, JJ., concur.

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

[2] The Workers’ Compensation Commission’s order was dated December 21,
2001.

[3] McGee objected to this amendment, and the circuit court took the
matter under advisement. In the circuit court’s order, no mention of the amendment
was made, and notably, the circuit court only addressed the commission’s finding
that McGee suffered an injury of more than 50% to his back.  The circuit court
did not address any issue that was not specifically listed in Sovran’s notice
of intent to appeal.  Upon receipt of the circuit court’s order, Sovran did
not make a Rule 59 motion seeking a ruling on the issue of its ability to
amend the order orally; thus, even if Sovran could have amended its notice
of appeal, this issue was not preserved for appellate review.   Wigfall
v. Tideland Utilities, Inc., 354 S.C. 100, 103, 580 S.E.2d 100, 101 (2003)
(holding workers’ compensation claimant failed to preserve his equal protection
argument because he failed to make a Rule 59 motion after the circuit court
failed to rule on the issue).

[4] Under section 42-9-30 (19) of the South Carolina Code of Laws, “in
cases where there is fifty percent or more loss of use of the back . . . the
injured employee shall be deemed to have suffered total and permanent disability
and compensated therefore under paragraph two of § 42-9-10.”  Thus, the commission’s
amendment to the commissioner’s order merely added an additional sustaining
ground to the award of permanent, total disability.