Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2004-UP-495 - 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Unpublished Opinion No. 2004-UP-495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.