Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2007-UP-528 - McSwain v. Little Pee Dee Farms

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

Thomas C. McSwain, Respondent,

v.

Little Pee Dee Farms and Legion Insurance Company/South Carolina Property and Casualty Insurance Guaranty Association, Appellants.


Appeal From Dillon County
 James E. Lockemy, Circuit Court Judge


Unpublished Opinion No. 2007-UP-528 
Submitted October 1, 2007 – Filed November 13, 2007


AFFIRMED


Frank R. Warder, Jr., of Charleston, for Appellants.

E. Hood Temple, of Florence, for Respondent.

PER CURIAM:  In this workers’ compensation action, Little Pee Dee Farms (Pee Dee) and Legion Insurance Company/South Carolina Property & Casualty Insurance Guaranty Association (collectively Appellants) appeal the circuit court’s order affirming the finding of the South Carolina Workers’ Compensation Commission (Commission) of Thomas McSwain’s (Claimant) applicable compensation rate.  We affirm.

FACTS

Pee Dee is a general partnership in which Claimant is an equal, one-third partner, with Claimant’s mother and father comprising the rest of the partnership.  In July 2001, Claimant suffered injuries to both of his heels in the course and scope of his employment.  Thereafter, Claimant had two surgeries on his injured heels, and Appellants commenced temporary total disability payments totaling $416.67 per week.

In November 2004, Legion Insurance Company filed for bankruptcy and went into liquidation.  Pursuant to Section 38-31-40 of the South Carolina Code (Supp. 2006), a statutorily created association was appointed to assume responsibility for Claimant’s file.  Upon review of Claimant’s federal and state income tax returns, Appellants filed a Form 21 Employer’s Request for Hearing with the Commission, requesting an evaluation of Claimant’s compensation rate. 

A hearing was held before the Single Commissioner to determine if the compensation rate should be maintained at its current level or be reduced; the Commissioner held the weekly compensation rate was to remain at $416.67.  Specifically, the Commissioner determined the Claimant’s average weekly wage should not account for any losses or debts attributable to Claimant’s partnership interest.  Appellants filed a timely Form 30 Application for Full Commission Appellate Panel Review, and the Appellate Panel affirmed the Single Commissioner, adopting the findings in full.      

Following a timely appeal and hearing on the matter, the circuit court found the decision of the Appellate Panel to be supported by substantial evidence and affirmed the decision.  This appeal follows.

STANDARD OF REVIEW

The Administrative Procedures Act applies to appeals from decisions of the Commission.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  In an appeal from the Appellate Panel, neither this Court nor the circuit court may substitute its judgment for that of the Appellate Panel in regards to the weight of the evidence on questions of fact, but it may reverse when the decision is affected by an error of law.  Corbin v. Kohler Co., 351 S.C. 613, 617, 571 S.E.2d 92, 95 (Ct. App. 2002).

“Any review of the [Appellate Panel’s] factual findings is governed by the substantial evidence standard.”  Lockridge v. Santens of Am., Inc., 344 S.C. 511, 515, 544 S.E.2d 842, 844 (Ct. App. 2001). “Substantial evidence is evidence that, in viewing the record as a whole, would allow reasonable minds to reach the same conclusion that the [Appellate Panel] reached.”  Id.  “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”  Lee v. Harborside Café, 350 S.C. 74, 78, 564 S.E.2d 354, 356 (Ct. App. 2002) (internal quotations and citations omitted).  Accordingly, we limit review to deciding whether the Appellate Panel’s decision is unsupported by substantial evidence or is controlled by some error of law.  Corbin, 351 S.C. at 617, 571 S.E.2d at 95. 

LAW/ANALYSIS

Appellants contend the circuit court erred in affirming the Appellate Panel.  We disagree.  

Appellants have failed to show the findings of the Appellate Panel are unsupported by substantial evidence.  Claimant presented Dal Felkel, an accountant for fifty-four years, who testified he had personally prepared the tax forms of both Pee Dee and Claimant.  Upon direct examination, Felkel asserted Claimant’s salary for the immediate four preceding quarters was $32,500.  The average weekly wage of an employee for workers’ compensation purposes is defined as “the earnings of the injured employee in the employment in which [they were] working at the time of the injury . . . [and] must be calculated by taking the total wages paid for the last four quarters immediately preceding the quarter in which the injury occurred . . . .”  S.C. Code Ann. § 42-1-40 (Supp. 2006).  Using this computation method, Felkel declared Claimant’s bi-weekly wage before taxes was $1,250.   

On cross-examination, Appellants questioned Felkel about the losses Pee Dee sustained during the tax years in question and also as to Claimant’s characterizations of the income he received from Pee Dee on his tax forms.  However, this questioning did not dissuade Felkel of his opinion as to Claimant’s compensation in the preceding four quarters, and on re-direct examination, Felkel specifically asserted that the $32,500 was received by Claimant “[a]s a wage over and above his share of the profits or losses.”  Felkel supported his assertions regarding the wage received by Claimant prior to the accident, and Appellants failed to present any expert testimony to challenge Felkel’s assertions.  Appellants instead chose to rely solely upon the submission of Claimant’s tax return.  Thus, the Appellate Panel’s decision not to use Claimant’s net taxable income as the basis of his compensation rate is supported by substantial evidence.

In support of their argument, Appellants argue this Court must follow Stephen v. Avins Construction Co. and determine Claimant’s average weekly wage based upon net income.  324 S.C. 334, 347, 478 S.E.2d 74, 81 (Ct. App. 1996).  We disagree. 

In Stephen, this Court held that a claimant’s compensation rate based on his earnings as a self-employed subcontractor should be based on his net taxable income, even though the subcontractor was charged workers’ compensation premiums based on his gross earnings.  Id.  This Court, however, was careful to tailor its discussion and holding to the specific facts of the case.  Id.  Claimant’s situation is factually distinguishable, and therefore, Stephen provides little guidance in determining what the appropriate compensation rate is for Claimant.  Reviewing the evidence presented from both sides, the Appellate Panel’s determination of Claimant’s average weekly wage is clearly supported by substantial evidence and must, therefore, be affirmed.      

CONCLUSION

We find the circuit court did not err in affirming the Appellate Panel.  Because we find substantial evidence in the record to determine the Claimant’s average weekly wage was $416.67 after taxes, the circuit court’s ruling is therefore

AFFIRMED.[1]

STILWELL, SHORT, and WILLIAMS, JJ., concur.


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