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2011-UP-229 - Zepeda-Cepeda v. Priority Landscaping

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

Ramone Zepeda-Cepeda, Appellant,

v.

Priority Landscaping and Lawn Care, LLC, Employer, and Accident Fund Insurance Company of America, Carrier, Respondents.


Appeal From the South Carolina Workers' Compensation Commission
Appellate Panel


Unpublished Opinion No. 2011-UP-229
Submitted April 1, 2011 – Filed May 18, 2011   


AFFIRMED


Don C. Gibson, of North Charleston, for Appellant.

Mikell H. Wyman, of Charleston, for Respondents.

PER CURIAM:  In this workers' compensation case, Appellant Ramone Zepeda-Cepeda (Claimant) seeks review of a decision of the South Carolina Workers' Compensation Commission (Commission) denying his request for temporary total disability benefits and payment of medical expenses for an injury to his right leg.  Claimant challenges the Appellate Panel's finding that his injury did not arise out of and in the course of his employment because he was engaging in horseplay when the injury occurred.  We affirm.[1]

FACTS/PROCEDURAL HISTORY

In March 2007, Claimant began working for Priority Landscaping and Lawn Care, LLC (Employer), located in Folly Beach.  Among other equipment, Employer provided Claimant and his co-workers with a pole saw and extension ladders for trimming tree branches.  If a branch was so high that it could not be reached while using an extension ladder and a pole saw, Employer would subcontract out that particular work to Budget Tree Service (Budget).      

On September 4, 2008, Employer assigned Claimant to a crew of four to perform work on the grounds at Fort Johnson Baptist Church.  The other three workers were Leonardo Solano (Leonardo), Frank Shoppel (Frank), and Cesar Rodriguez (Cesar).  Frank supervised the crew, and Cesar interpreted Frank's English into Spanish for Claimant and Leonardo.  The crew arrived at the location at approximately 12:45 p.m. and ate lunch before beginning work.

According to Claimant, as he began work at the location, Cesar told him that Frank wanted him to climb a large oak tree to trim one of its branches.  Claimant climbed up to a large branch approximately twenty feet off the ground.  He began walking along the branch and was expecting one of his co-workers to hand him a tool once he was near the branch to be trimmed.  However, he lost his balance and fell to the ground. 

The hearing testimony of Frank and Cesar provided a different version of the events leading up to Claimant's injury.  They both testified that Employer never assigned branch trimming for those branches that could not be reached with the pole saw and extension ladder.  They further testified that on the day of the injury, Frank never asked Cesar to tell Claimant to trim any branches on the tree in question.  Rather, they testified that Cesar offered Claimant a twenty-dollar bet that he would not jump out of the oak tree from a limb hovering twenty feet off the ground.  Claimant quickly accepted the bet, climbed up the tree, and began walking out on the limb.  He then "cradled" the limb, turned over, hung off the branch, and deliberately dropped to the ground. 

It is undisputed that Claimant landed on his feet and limped over to the truck in which the crew rode to the location.  He then began to feel pain in his right leg.  Frank called Employer's owner, William Hampton (Owner), to determine how to respond to Claimant's injury.  Frank also asked Cesar to advise Claimant that he should tell others he stepped in a hole.  Employer's secretary drove Claimant to Doctor's Care and later took him to a local hospital for further treatment.  The next day, Frank gave a written statement to Owner's wife.  In the statement, Frank alleged that Claimant had climbed the tree without being instructed to do so and that the tree in question was not the type of tree that Employer would maintain.  Frank also stated "It appears that [Claimant] climbed the tree for fun.  He was injured when he jumped or fell out of the tree." 

Claimant sought temporary total disability benefits as well as payment of all medical expenses related to his leg injury.  Employer and its insurer, Accident Fund Insurance Company of America (Carrier), contested the claim on the ground that Claimant had been engaging in horseplay when he injured his right leg.  The Single Commissioner found that Claimant was not engaging in horseplay and awarded Claimant the requested benefits.  The Appellate Panel reversed the award, finding that Claimant was in fact engaging in horseplay, and, therefore, his injury did not arise out of and in the course of his employment.  This appeal followed.  

ISSUE ON APPEAL

Was the Appellate Panel's finding that Claimant's injury did not arise out of and in the course of his employment supported by substantial evidence when the testimony on which the Appellate Panel relied was purportedly not credible?[2]

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act establishes the standard for judicial review of decisions by the Appellate Panel of the Workers' Compensation Commission.  See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  Specifically, section 1-23-380 of the South Carolina Code (Supp. 2010) provides that this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse when the decision is affected by an error of law.[3]  See Hamilton v. Bob Bennett Ford, 336 S.C. 72, 76, 518 S.E.2d 599, 600-01 (Ct. App. 1999), modified on other grounds, 339 S.C. 68, 528 S.E.2d 667 (2000) (interpreting section 1-23-380).  Section 1-23-380 allows reversal of a factual finding of the Appellate Panel only if it is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."

In workers' compensation cases, the Commission is the ultimate factfinder.  This Court must affirm the findings of fact made by the full commission if they are supported by substantial evidence.  Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.

Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010) (internal citations and quotations marks omitted).

LAW/ANALYSIS

Claimant contests the Appellate Panel's finding that his injury did not arise out of and in the course of his employment.  He argues that this finding is not supported by substantial evidence because his supervisor, Frank, and his interpreter, Cesar, who both testified that Claimant jumped out of a tree on a bet, had no credibility.  Claimant asserts that Cesar and Frank admitted in the hearing before the Single Commissioner that they did not initially tell the truth about how Claimant injured himself.  Therefore, Claimant argues, their hearing testimony could not be believed.  We disagree.

"In workers' compensation cases, the Full Commission is the ultimate fact finder."  Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  "The final determination of witness credibility and the weight to be accorded evidence is reserved to the Full Commission."  Id.  "It is not the task of this Court to weigh the evidence as found by the Full Commission."  Id.


Further, the trier of fact has the prerogative to believe one part of a witness's testimony while simultaneously disbelieving other parts of the same witness's testimony.  See Holcombe v. Dan River Mills, 286 S.C. 223, 225, 333 S.E.2d 338, 340 (Ct. App. 1985) ("The Commission in workers' compensation cases sits as a jury does. It is elementary that a jury may believe part or all of a witness's testimony[.]").  Therefore, Claimant's argument that the testimony of Frank and Cesar cannot constitute substantial evidence because they admitted to previous misrepresentations is unconvincing.  The Appellate Panel could have believed the testimony of Cesar and Frank that they were afraid they would lose their jobs if Employer learned that Claimant climbed the tree on a bet from Cesar and that Frank allowed this to happen.      

Additionally, Owner's testimony supported the Appellate Panel's finding that Claimant's injury did not arise out of and in the course of his employment.  Owner stated that the only time that his workers would attempt to trim a large oak tree was when it could be done with an extension pole saw and a stepladder and when the limb was not too big.  Owner also testified that his standard practice was to subcontract out to Budget the trimming of any out-of-reach branches; and, that he had in fact used Budget for the very property on which Claimant and his co-workers were located on the day of the injury.    

Claimant also argues that the Appellate Panel made no credibility findings, and, as a result, the Single Commissioner's finding that the testimony of Frank and Cesar was not credible was left undisturbed.  Hence, Claimant asserts, this court should give deference to the Single Commissioner's credibility determination.  We disagree.  In the fifth finding of fact of the Appellate Panel's decision, it relied on the testimony of Frank and Cesar.  Therefore, there is no question that the Appellate Panel found this testimony to be credible.  As stated earlier, this court is required to give deference to the Appellate Panel's credibility determination.  See Shealy, 341 S.C. at 455, 535 S.E.2d at 442 ("The final determination of witness credibility and the weight to be accorded evidence is reserved to the Full Commission.").

Based on the foregoing, the evidence in the record would allow reasonable minds to reach the conclusion the Appellate Panel reached—that Claimant was engaging in horseplay, and, thus, his injury was not compensable.  See Jones v. Hampton Pontiac, 304 S.C. 440, 441-42, 405 S.E.2d 395, 395-96 (1991) (holding that an employee's demonstration of a karate kick, while on break, did not give rise to his injury as a natural incident of the work, and, therefore, his injury was not compensable).  Hence, the Appellate Panel's finding that Claimant's injury did not arise out of and in the course of his employment was supported by substantial evidence.  See Pierre, 386 S.C. at 540, 689 S.E.2d at 618 ("Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.") (internal citations and quotation marks omitted) (emphasis added).

CONCLUSION

Accordingly, the Appellate Panel's decision is 

AFFIRMED.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.


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

[2] A claimant's injury must arise out of his employment and occur in the course of his employment.  Beam v. State Workmen's Compensation Fund, 261 S.C. 327, 331, 200 S.E.2d 83, 85 (1973). 

The two elements must co-exist. They must be concurrent and simultaneous. One without the other will not sustain an award; yet the two are so entwined that they are usually considered together in the reported cases; and a discussion of one of them involves the other.

As is generally held, the words "arising out of" refer to the origin of the cause of the accident, while the words "in the course of employment," have reference to the time, place and circumstances under which the accident occurs.

Douglas v. Spartan Mills, 245 S.C. 265, 268-69, 140 S.E.2d 173, 174-75 (1965) (internal citation and quotation marks omitted).

[3] The pertinent language of section 1-23-380 is as follows:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:  (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.