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2008-UP-639 - Overnite Transportation v. SC Second Injury Fund

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

Overnite Transportation, Appellant,

v.

South Carolina Second Injury Fund, Respondent,

[IN RE: Kenneth Teaster, Employee/Claimant

v.

Overnite Transportation, Employer/Carrier.]


Appeal From Spartanburg County
 Roger L. Couch, Circuit Court Judge


Unpublished Opinion No. 2008-UP-639
Submitted November 3, 2008 – Filed November 17, 2008  


AFFIRMED


David Hill Keller, of Greenville, for Appellant.

Latonya Dilligard Edwards, of Columbia, for Respondent.

PER CURIAM: Overnite Transportation (Overnite) appeals from a circuit court order affirming the Appellate Panel’s finding Overnite was not entitled to reimbursement from the South Carolina Second Injury Fund (the Fund) for Kenneth Teaster’s injuries.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:

1.  As to whether Teaster’s accidents involved physical injuries which resulted in the exacerbation of a pre-existing psychological condition: Stone v. Roadway Express, 367 S.C. 575, 582, 627 S.E.2d 695, 698 (2006) (stating an issue must be raised and ruled upon by the Appellate Panel in order to be considered on appeal).

2. As to whether Teaster’s mental injuries were entitled to compensation under the Workers’ Compensation Act pursuant to South Carolina Code section 42-1-160(B): S.C. Code Ann. § 42-1-160(B) (Supp. 2007) (stating an employee must establish by a preponderance of the evidence stress, mental injuries, and mental illness arising out of and in the course of employment and unaccompanied by physical injury should be considered a personal injury); Gray v. Club Group, Ltd., 339 S.C. 173, 182, 528 S.E.2d 435, 440 (Ct. App. 2000) (stating a reviewing court should affirm a decision by the Appellate Panel unless it is clearly erroneous in view of the substantial evidence of the whole record).

3.  As to whether Teaster’s mental injuries were reimbursable under South Carolina Code section 42-9-400(d)(34)(b) (Supp. 2003):[2] S.C. Code Ann. § 42-9-400(a) (Supp. 2007) (stating if an employee has a permanent physical impairment and incurs a subsequent disability from an injury arising out of an in the course of his employment, an employer may be reimbursed by the Fund if certain statutory conditions are met); S.C. Code Ann. § 42-9-400(d)(34)(b) (Supp. 2003) (explaining in order to qualify for reimbursement an employer must prove: (1) the employee had a pre-existing permanent physical impairment; (2) the employer had knowledge of employee’s permanent physical impairment; and (3) the pre-existing permanent impairment  combined with the subsequent injury to cause impairment in excess of  seventy-eight weeks under section 42-9-30).

AFFIRMED.[3]

WILLIAMS, PIEPER, and GEATHERS, JJ., concur. 


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

[2] South Carolina Code section 42-9-400(d)(34)(b) (Supp. 2003) was deleted by a 2007 amendment; however, it was applicable at the time of the alleged injury.

[3] Overnite’s argument that the circuit court engaged in impermissible fact finding is manifestly without merit, and we decline to address it.  Rule 220(b)(2), SCACR.