McQueen v. Staffmark, Inc.

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH
CAROLINA

In The Court of Appeals

Walter McQueen, Respondent,

v.

Staffmark, Inc. and Atlantic
Mutual Insurance Co., Appellants.

Appeal From Chesterfield
County

 J. Michael Baxley, Circuit
Court Judge

Unpublished Opinion
No. 2004-UP-495

Submitted September 15, 2004
– Filed September 30, 2004

REVERSED

Stanford E. Lacy, Christian
Stegmaier, Collins & Lacy, of Columbia, for Appellants.

Kenneth Ray Martin, Martin
Law Offices, of Cheraw, for Respondent.

PER
CURIAM: StaffMark, Inc. and Atlantic Mutual Insurance Company (collectively
StaffMark) appeal the circuit court’s reversal of the Appellate Panel of the
Workers’ Compensation Commission’s order denying claimant Walter McQueen compensation. 
We reverse. 1 

FACTUAL AND PROCEDURAL
BACKGROUND

McQueen was hired by StaffMark, a
company that provides temporary employees to other businesses, around January
11, 1999.  He was assigned to the Wal-Mart Distribution Center, where he worked
as an order filler. 

David
Kessler, who had been McQueen’s StaffMark supervisor, testified by deposition
that soon after McQueen began working, the manager at Wal-Mart wanted McQueen
let go because of poor work performance.  On Monday, January 25, 1999, Kessler
informed McQueen that his assignment at Wal-Mart was complete, which is the
terminology StaffMark used rather than stating someone’s employment was terminated. 
Kessler stated that he told McQueen to turn in all of his equipment.  He also
advised McQueen that if he went to the StaffMark office in Monroe, North Carolina,
that office might be able to find another job for him. 

Kessler
testified that about thirty minutes later, McQueen and his Wal-Mart supervisor
approached him.  The supervisor advised Kessler that McQueen had just told him
that McQueen had hurt his back.  In response to Kessler’s questioning, McQueen
stated he had hurt his back during his Thursday shift, which was the last night
he had worked.  Kessler stated McQueen’s failure to notify his supervisor immediately
of the injury was in violation of StaffMark’s policies.  He explained that he
had given copies of StaffMark’s injury reports to the loss prevention office
and had requested that in case of an injury to a StaffMark employee when he
or the other StaffMark supervisor was not there, that the forms be filled out
and he or StaffMark employee Renee Haigler be called.  Kessler averred that
the first he heard of McQueen’s injury was after he had terminated McQueen’s
employment. 

In contrast
to Kessler’s testimony, McQueen testified that immediately after he felt “something
pop” in his back, he went to Michael Reese, a supervisor for the Wal-Mart Distribution
Center and explained to him what happened.  The accident happened in the early
morning hours of Friday, January 22, 1999.  He finished working that night and
went home around 3:30 a.m.  He went back to work the afternoon of Monday, January
25, 1999.  As soon as he arrived at the Distribution Center, he spoke again
with Reese.  Reese took him to the StaffMark supervisor whom McQueen called
“Mr. Mullins.”  McQueen testified Mullins informed them, “No, you don’t have
to fill out an accident report on him cause I’m gone (sic) let him go anyway.” 
McQueen related Mullins then told him to turn in his equipment.  McQueen maintained
he had told Mullins about his injury before Mullins terminated his employment. 

McQueen
had x-rays taken at Chesterfield General Hospital and sought treatment from
Dr. Thrailkill and the other doctors in that practice for four months until
he was released to return to work.  He stated the doctors referred him to a
specialist, but he did not see the specialist because he did not have the money
to pay for such a visit.  He is still bothered by the injury. 

McQueen
filed a claim for Workers’ Compensation benefits.  StaffMark denied the claim. 
The single commissioner held McQueen had suffered a compensable injury and ordered
StaffMark to be responsible for all authorized medical treatment through the
date of maximum medical improvement.  The commissioner ruled any finding as
to permanent impairment or disability was premature, as McQueen had not yet
reached maximum medical improvement. 

The Appellate
Panel of the Workers’ Compensation Commission reversed the order of the single
commissioner.  It listed the inconsistencies between McQueen’s hearing testimony
and information he gave during his job application, doctor’s visits, and deposition
testimony.  It noted that Kessler, who had left StaffMark’s employment and was
a military chaplain stationed in Germany, had no stake in the outcome of the
case.  It found Kessler to be the more credible witness and the one worthy of
belief while McQueen’s testimony was not worthy of belief because of his omissions
inconsistencies, and misrepresentations.  The Appellate Panel held, “Looking
at the record as a whole, because claimant’s testimony is not worthy of belief,
and there is no other evidence of accident or injury, the commission’s Order
should be reversed.”

The circuit
court reversed the Appellate Panel’s decision, reinstated the single commissioner’s
order, and remanded the matter to the Appellate Panel for a determination of
the specific benefits due McQueen.  This appeal followed.   

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, 276 S.C. 130,
135, 276 S.E.2d 304, 306 (1981).  This court can reverse or modify the Appellate
Panel’s decision only if the appellant’s substantial rights have been prejudiced
because the decision is affected by an error of law or is clearly erroneous
in view of the reliable, probative, and substantial evidence on the whole record. 
Shealy v. Aiken County, 341 S.C. 448, 454, 535 S.E.2d 438, 442 (2000);
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003).  “Substantial evidence is not
a mere scintilla of evidence nor evidence viewed from one side, but such evidence,
when the whole record is considered, as would allow reasonable minds to reach
the conclusion the [Appellate Panel] reached.”  Shealy, 341 S.C. at 455,
535 S.E.2d at 442.  The possibility of drawing two inconsistent conclusions
does not prevent the Appellate Panel’s conclusions from being supported by substantial
evidence.  Tiller v. Nat’l Health Care Ctr., 334 S.C. 333, 338, 513 S.E.2d
843, 845 (1999).

The Appellate
Panel is the ultimate fact finder in workers’ compensation cases and is not
bound by the single commissioner’s findings of fact.  Ross v. American Red
Cross, 298 S.C. 490, 492, 381 S.E.2d 728, 730 (1989).  “The final determination
of witness credibility and the weight to be accorded evidence is reserved to
the [Appellate Panel].  It is not the task of this Court to weigh the evidence
as found by the [Appellate Panel].”  Shealy, 341 S.C. at 455, 535 S.E.2d
at 442 (citations omitted).

DISCUSSION

StaffMark
argues the circuit court erred in reversing the decision of the Appellate Panel. 
We agree. 

Kessler and
McQueen presented competing versions about how McQueen reported his injury. 
McQueen stated he immediately told his Wal-Mart supervisor about the injury
when it occurred Friday morning and that he and the supervisor told the StaffMark
supervisor about the injury at the beginning of McQueen’s Monday shift, before
he was fired.  Kessler, on the other hand, testified that it was not until thirty
minutes after he fired McQueen that McQueen and the Wal-Mart supervisor approached
him to report the injury.  Furthermore, according to Kessler, the Wal-Mart supervisor
stated that McQueen had just told him about the injury. 

The Appellate
Panel found Kessler to be more credible as he was no longer employed by StaffMark
and thus had no stake in the matter.  The Panel further found McQueen to be
not worthy of belief.  It noted that while McQueen had listed on his employment
application at StaffMark that he had been employed by a trucking company in
Virginia for thirty years, he testified at the hearing that he had worked a
number of different places.  The Panel described how McQueen had been inconsistent
in his deposition and hearing testimony concerning previous workers’ compensation
claims.  Although he testified in his deposition that he had no prior workers’
compensation claims, at the hearing he admitted to a claim in Virginia.  The
Panel noted that McQueen had been inconsistent regarding his symptoms, testifying
at the hearing that he had back pain with pain radiating down the right leg
only, while describing bilateral leg pain at his initial doctor’s visit.  The
Appellate Panel related how during McQueen’s hearing testimony he denied filing
workers’ compensation claims against a subsequent employer but recanted when
challenged and acknowledged two workers’ compensation claims against Powell
Manufacturing.  It noted that when McQueen sought treatment for the hand injury
that was the basis of his claim against Powell, he told the emergency room staff
that he had just been terminated.  He also told them he had consumed half a
pint of liquor.  At the hearing, he denied both of these statements. 

The Appellate
Panel found McQueen’s testimony was directly refuted by Kessler’s and it was
not possible to believe both witnesses.  It concluded McQueen’s testimony was
not worthy of belief because of his omissions, inconsistencies, and misrepresentations. 

The circuit
court rejected the Appellate Panel’s determination of the credibility of the
witnesses.  It explained that the single commissioner had the opportunity to
observe McQueen’s testimony and demeanor and such opportunity allowed her to
accurately gauge his credibility.  On the other hand, the court noted, no one
had the opportunity to personally observe the demeanor of Kessler, who testified
by international telephone deposition, and thereby evaluate his credibility. 
However, as stated above, issues of witness credibility are for the Appellate
Panel to decide, not for this court or the circuit court to decide.  See
Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).

The circuit
court found that objective medical findings in the file substantiated McQueen’s
claim of injury.  However, even in McQueen’s medical records, the only evidence
that he was injured while working for StaffMark was provided by McQueen himself
in his statements to the doctor.  The Appellate Panel acted within its authority
in discounting any statements by McQueen, whom it found to be not worthy of
belief.  Absent any statements or testimony from McQueen, the record is devoid
of any evidence of an injury by accident while McQueen was working for StaffMark,
as the Appellate Panel found.  Accordingly, we hold the circuit court erred
in reversing the decision of the Appellate Panel.   Thus, the order of the circuit
court is REVERSED and the decision of the Appellate Panel reinstated. 

REVERSED.

HEARN, C.J., and HUFF and KITTREDGE,
JJ., concur.

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