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2011-UP-397 - Whitaker v. Overnight Transportation

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

Bobby Whitaker, Employee, Respondent/Appellant,

v.

Overnight Transportation, Self-Insured Employer, Appellant/Respondent.


Appeal From Greenville County
 Edward W. Miller, Circuit Court Judge


Unpublished Opinion No. 2011-UP-397
Submitted August 1, 2011 – Filed August 19, 2011   


AFFIRMED


David Hill Keller, of Greenville, for Appellant/ Respondent.

Kathryn Williams, of Greenville, for Respondent/ Appellant.

PER CURIAM: In this workers' compensation case, Overnight Transportation (Employer) appeals the circuit court's order affirming the Appellate Panel of the South Carolina Workers' Compensation Commission's (the Appellate Panel) decision to award Bobby Whitaker permanent total disability benefits.  On appeal, Employer argues the circuit court erred in: (1) affirming the Appellate Panel's finding that Whitaker's injury was an injury by accident arising out of his employment; (2) affirming the Appellate Panel's finding that Whitaker's work-related injury aggravated his pre-existing left hip condition; and (3) declining to address whether the Appellate Panel's order made specific factual findings on arguments raised by Employer. Whitaker cross-appeals, arguing the circuit court erred in affirming the Appellate Panel's denial of a total lump sum payment.  We affirm.[1]

I.  Employer's Appeal

1.  We find the circuit court properly affirmed the Appellate Panel's finding that Whitaker's work-related injury aggravated his pre-existing left hip condition.  Generally, a work-related accident that aggravates a pre-existing condition is compensable.  S.C. Code Ann. § 42-9-35(B) (Supp. 2010).  The pre-existing condition must be "aggravated or accelerated or activated" by an injury by accident arising out of and during the course of employment.  Gordon v. E. I. Du Pont De Nemours & Co., 228 S.C. 67, 76, 88 S.E.2d 844, 848 (1955).  An employee may recover for the aggravation of a pre-existing condition only "where there is a dormant condition which has produced no disability but which becomes disabling by reason of the aggravating injury."  Hargrove v. Titan Textile Co., 360 S.C. 276, 295, 599 S.E.2d 604, 614 (Ct. App. 2004).  However, a condition is not compensable when "it is due solely to the natural progression of a pre-existing condition."  Id. 

Here, substantial evidence supports the circuit court's decision to affirm the Appellate Panel's finding that Whitaker's work-related injury aggravated his pre-existing left hip condition.  See S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2010) (providing this court will affirm the factual findings of the Appellate Panel if supported by substantial evidence); see also Hargrove, 360 S.C. at 295, 599 S.E.2d at 614 ("A determination of whether a claimant's condition was accelerated or aggravated by an accidental injury is a factual matter for the Appellate Panel.").  Although Whitaker presented evidence that he suffered from a pre-existing condition, no evidence exists showing that the pre-existing condition was active.  In fact, the evidence presented supports a finding that the pre-existing condition was dormant because Whitaker testified that he did not have any pain after his doctor's appointment in 2005.  Dr. McAvoy also testified that Whitaker did not complain of pain during his follow-up appointment in December 2005.  Moreover, evidence exists to support the finding the work-related injury aggravated Whitaker's pre-existing hip condition.  Namely, Dr. McAvoy opined Whitaker's work-related injury accelerated his condition requiring him to have hip replacement surgery sooner than expected.  Accordingly, substantial evidence exists supporting the finding that Whitaker's work-related accident aggravated his pre-existing hip condition.

2.  We find Employer's argument that the circuit court erred in affirming the Appellate Panel's order because the Appellate Panel failed to make specific factual findings concerning the necessity of Whitaker's hip replacement surgery is without merit.[2]  The single commissioner's order held Employer responsible for Whitaker's left hip replacement surgery because the injury by accident aggravated his pre-existing condition.  Additionally, the Appellate Panel addressed the issue, finding the need for hip replacement surgery was accelerated due to the work-related fall because Whitaker was not experiencing any hip pain prior to the injury.  Because the Appellate Panel made specific factual findings concerning this issue, we affirm.  See Nettles v. Spartanburg School Dist. # 7, 341 S.C. 580, 590, 535 S.E.2d 146, 151 (Ct. App. 2000) ("The [Appellate Panel] must make specific findings of fact upon which a claimant's right to compensation are based.").

II.  Whitaker's Appeal

We hold the circuit court properly affirmed the Appellate Panel's decision to award Whitaker a partial lump sum payment.  When reviewing the Appellate Panel's decision concerning lump sum payments, the reviewing court must review the decision for an abuse of discretion.  Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 878 (Ct. App. 2006).  "An abuse of discretion occurs if the [Appellate Panel]'s findings are wholly unsupported by the evidence or the conclusions reached are controlled by an error of law."  Id.  Section 42-9-301 of the South Carolina Code (1976) permits the award of lump sum payments for workers' compensation benefits when the Appellate Panel determines the payment is not contrary to the best interest of the employee or it will prevent undue hardship on the employer without prejudicing the employee's interests.

Here, the Appellate Panel found the award of a partial lump sum payment and periodic payments for the remaining amount were in Whitaker's best interests.  In making this determination, the Appellate Panel cited to Whitaker's testimony concerning his financial obligations as well as to its concerns regarding potential reductions by social security or other disability benefits for his lump sum payment.  Additionally, Whitaker explained he wanted a lump sum payment in order to satisfy his financial debts of $28,000 on his home mortgage, $5,000 in credit cards, and $2,000 for his car.  The Appellate Panel's award of $40,000 in lump sum payment covered all of these expenses and provided Whitaker with an extra $5,000.  The Appellate Panel also awarded Whitaker a lump sum payment for his attorney's fees.  Consequently, with the two lump sum payment awards, Whitaker can satisfy all of his reported debts. Accordingly, the Appellate Panel's award did not constitute an abuse of discretion.

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.


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

[2] We decline to address this issue because it is not preserved for our review.  Employer did not raise it until the hearing before the circuit court, and the circuit court did not make an express finding on it.  See Stone v. Roadway Express, 367 S.C. 575, 582, 627 S.E.2d 695, 698 (2006) ("Only issues raised and ruled upon by the [Appellate Panel] are cognizable on appeal.").