Hendrix v. Hollingsworth

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

Waymon D.
Hendrix, Respondent/Appellant,

v.

John D.
Hollingsworth on Wheels, Inc., and The Hartford, Appellants/Respondents.

Appeal From Appellate Panel

South Carolina Workers' Compensation
Commission

Unpublished Opinion No. 2012-UP-111  

Heard December 6, 2011 – Filed February
22, 2012

AFFIRMED

Duke K. McCall, Jr., of Greenville, for
Appellants/ Respondents.

Andrew Carl Barr, of Greenville, for
Respondent/ Appellant.

PER CURIAM: Waymon Hendrix suffered injuries in an
admitted work-related accident on February 12, 2008.  Prior to the accident, in
September 2007, employer John D. Hollingsworth on Wheels, Inc., granted
Hendrix's request to be moved from full-time to part-time employment to avoid a
reduction of his social security benefits.  Hollingsworth appeals the average
weekly wage calculation of the appellate panel of the workers' compensation commission. 
Hendrix cross-appeals the appellate panel's finding that his cervical spine
condition was not causally related to the accident.  We affirm the order of the appellate panel pursuant to
Rule 220(b)(1), SCACR, and the following authorities:

(1) As to the calculation of
Hendrix's average weekly wage: Pilgrim v. Eaton, 391 S.C. 38, 44-45, 703 S.E.2d 241, 244 (Ct. App. 2010) (stating
the commission must calculate average weekly wage "'by taking the total
wages paid for the last four quarters . . . divided by fifty-two or by the
actual number of weeks for which wages were paid, whichever is less' . . .
unless 'the employment, prior to the injury, extended over a period of less
than fifty-two weeks,' or unless 'for exceptional reasons' it would be unfair
to do so." (quoting S.C. Code Ann. § 42-1-40 (Supp. 2011))); 391 S.C. at
44, 703 S.E.2d at 243-44 (stating "an appellate court may not reverse the
commission's decision [of the average weekly wage calculation] unless
substantial rights of the appellant have been prejudiced because the decision
is affected by an error of law, or because the factual findings are clearly
erroneous in view of the reliable, probative, and substantial evidence"). 
We find this case distinguishable from Bennett v. Gary Smith Builders,
271 S.C. 94, 245 S.E.2d 129 (1978) for several reasons, including (1) the
length of the part-time employment prior to the injury was less than five
months and was therefore not permanently established, (2) the average weekly
wage calculation included both full-time and part-time salary amounts, and (3)
the commission specifically found the calculation to be fair and reasonable.

(2) As to the
factual finding that Hendrix's cervical spine condition was not causally
related to the work accident: Bartley v. Allendale Cnty. Sch. Dist., 392
S.C. 300, 306, 709 S.E.2d 619, 622 (2011) ("[T]his Court must affirm the
findings of fact made by the Commission if they are supported by substantial
evidence.").

AFFIRMED.

FEW, C.J., and THOMAS and
KONDUROS, JJ., concur.