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2011-UP-017 - Dority v. MeadWestvaco

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

Thomas E. Dority, Respondent,

v.

MeadWestvaco, Appellant.


Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-017
Heard December 8, 2010 – Filed January 25, 2011   


REVERSED AND REMANDED


Kirsten Leslie Barr, of Mt. Pleasant; for Appellant.

David T. Pearlman, of Charleston; for Respondent.

FEW, C.J.: This case is decided pursuant to Rule 220(b), SCACR.  MeadWestvaco appeals the circuit's court order reversing the appellate panel of the workers' compensation commission and reinstating the order of the single commissioner.  We reverse.

In 2005, Dority filed a workers' compensation claim against MeadWestvaco alleging he suffered an accidental injury to his ears as the result of "working in [a] noisy area."  The single commissioner found that Dority suffered a compensable work related hearing loss injury.  The appellate panel vacated the single commissioner's order for failure to include sufficient findings of fact and remanded the matter.  On remand, a single commissioner concluded that Dority "established by a preponderance of the evidence that he sustained an injury by accident arising out of and in the course of his employment with the Defendant to both ears."  The appellate panel reversed and dismissed Dority's claim, finding "Claimant's current hearing loss and need for hearing aids was not caused by any injury, accident or injurious exposure arising out of or in the course of his employment with MeadWestvaco." 

Dority filed a petition for judicial review.[1]  The circuit court reversed the decision of the appellate panel based on two errors of law: 1) an improper limitation of what constitutes "injury by accident" and 2) an improper application of the "last injurious exposure rule."  In addition, the circuit court ruled that the facts were "undisputed," made a finding that the claimant suffered a compensable injury by accident as a matter of law, and reinstated the single commissioner's order. 

MeadWestvaco contends that the circuit court erred in finding that the "undisputed facts established that [Dority] sustained a compensable injury by accident in 2004 as a matter of law" and in reinstating the single commissioner's order.  We agree.

While the circuit court is authorized to reverse the appellate panel when it makes errors of law, the appellate panel of the workers' compensation commission is the ultimate finder of facts.  Grant v. Grant Textiles, 372 S.C. 196, 200-01, 641 S.E.2d 869, 871 (2007); Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  A circuit court is not permitted to substitute its judgment for the judgment of the workers' compensation commission as to the weight of evidence on questions of fact.  S.C. Code Ann. § 1-23-380(A)(5) (2008).  If there is conflicting evidence with regard to factual issues, the factual findings must be made by the appellate panel.  See Baldwin v. James River Corp., 304 S.C. 485, 486-87, 405 S.E.2d 421, 422 (Ct. App. 1991) (vacating the circuit court's order and holding that by reinstating a single commissioner's order, the circuit court effectively determined facts from conflicting evidence).

The evidence presented as to whether Dority suffered a compensable injury is disputed.  For example, one medical doctor testified Dority's hearing loss is attributable to noise exposure and another medical doctor concluded that Dority "does not have any occupationally induced hearing loss."    Because the evidence as to this factual issue is in conflict, it was improper for the trial court to determine that Dority suffered a compensable injury as a matter of law.

Neither of the circuit court's legal rulings were appealed; thus, they are the law of the case.  See Eadie v. Krause, 381 S.C. 55, 66, 671 S.E.2d 389, 394 (Ct. App. 2008) (citing Charleston Lumber Co. v. Miller Hous. Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000) (noting "an unchallenged ruling, right or wrong, is the law of th[e] case and requires affirmance.") (internal quotations omitted)).  We reverse and remand to the appellate panel to apply the circuit court's legal rulings to the facts of this case.

REVERSED AND REMANDED.

SHORT and WILLIAMS, JJ., concur.


[1] This claim resulted from an injury that occurred before July 1, 2007, thus, the circuit court heard the appeal.  See 2007 S.C. Acts 111 (codified as amended at S.C. Code Ann. § 42-17-60 (2007)).