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2011-UP-398 - Peek v. SCE&G

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

Jason Roy Peek, Employee, Appellant,

v.

South Carolina Electric & Gas, Self-Insured Employer, Respondent.


Appeal From Calhoun County
 Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No. 2011-UP-398
Submitted August 1, 2011 – Filed August 19, 2011   


AFFIRMED


David T. Pearlman and J. Kevin Holmes, both of Charleston, for Appellant.

Kirsten Leslie Barr, of Mount Pleasant, for Respondent.

PER CURIAM:  In this workers' compensation case, Jason Roy Peek appeals the circuit court's order that affirmed the decision of the Appellate Panel of the South Carolina Workers' Compensation Commission (the Appellate Panel) to award Peek permanent partial disability for his back injury.  Peek argues the circuit court erred in: (1) affirming the Appellate Panel's decision even though the Appellate Panel's order failed to make sufficient findings of fact concerning whether Peek suffered permanent total disability under section 42-9-30(21) of the South Carolina Code (Supp. 2010); (2) making its own findings of fact concerning whether Peek suffered from permanent total disability under section 42-9-30(21); and (3) denying Peek a lump sum payment for his disability benefits.  We affirm.[1]

1.  We find the circuit court properly affirmed the Appellate Panel's decision to award Peek permanent partial disability.  The Appellate Panel "must make specific findings of fact upon which a claimant's right to compensation are based" in its award.  Nettles v. Spartanburg Sch. Dist. # 7, 341 S.C. 580, 590, 535 S.E.2d 146, 151 (Ct. App. 2000); see also S.C. Code Ann. § 42-17-40(A) (Supp. 2010) (providing that an award under the Workers' Compensation Act (the Act) requires the order to include "a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue").  "The duty to determine facts is placed solely on the [Appellate Panel] and the court reviewing the decision of the [Appellate Panel] has no authority to determine factual issues . . . ."  Fox v. Newberry Cnty. Mem'l Hosp., 319 S.C. 278, 280, 461 S.E.2d 392, 394 (1995). 

Generally, an employee will be limited to a scheduled recovery for a back injury.  S.C. Code Ann. § 42-9-30(21) (Supp. 2010).  However, an employee can receive general disability benefits if the employee can show  his back injury affects other parts of his body.  Lee v. Harborside Cafe, 350 S.C. 74, 78, 564 S.E.2d 354, 356 (Ct. App. 2002).  Section 42-9-30(21) also permits an award for permanent total disability for a back injury when the employee suffers from a fifty percent or more loss of the use of the back.   Additionally, an employee must show a loss of earning capacity in order to receive an award under the general disability sections.  Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990).         

Here, the Appellate Panel properly provided specific findings of fact concerning its decision to award Peek permanent partial disability.  See Nettles, 341 S.C. at 587, 535 S.E.2d at 149.  In the single commissioner's order, he found Peek was entitled to permanent partial disability because Peek suffered from a loss of earning capacity.  In support, the single commissioner cited to the testimony of Price, a certified rehabilitation counselor, concerning Peek's employment prospects.  Additionally, the single commissioner noted Peek suffered from a scheduled injury that affected other parts of his body.  The Appellate Panel affirmed the single commissioner's finding and noted the scheduled back injury affected Peek's legs. 

Substantial evidence supports the Appellate Panel's decision.  Peek presented evidence that he suffered from a scheduled injury that affected other parts of his body.  Peek testified that he continued to suffer from back and leg pain.  Peek's physician, Dr. Donald Johnson, also indicated Peek would have to take intermittent muscle relaxers and pain medications for his chronic pain.  Substantial evidence also exists to support the Appellate Panel's finding that Peek suffered from a loss of wage earning capacity.  Price believed Peek's employment prospects were limited due to his lack of transferable occupational skills and physical limitations.  Consequently, Price estimated Peek was capable of only non-skilled or semi-skilled work making $8 an hour. 

2.  We find the circuit court did not err in making its own findings of fact concerning whether Peek suffered from permanent total disability under section 42-9-30(21).  An employee cannot recover under both general disability and scheduled member sections.  Fields, 301 S.C. at 555, 393 S.E.2d at 173. Furthermore, the reviewing court is not concerned with whether the Appellate Panel awarded benefits under the general disability section or scheduled member section.  Roper v. Kimbrell's of Greenville, Inc., 231 S.C. 453, 455-56, 99 S.E.2d 52, 53-54 (1957). The reviewing court is concerned with whether substantial evidence exists to support the Appellate Panel's award.  S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2010).  Thus, Peek's argument that the circuit court improperly made findings of fact concerning Peek's permanent total disability claim is without merit.  The Appellate Panel only needs to make specific findings of fact concerning its basis for an award.  See Roper, 231 S.C. at 455-56, 99 S.E.2d at 53-54.  Consequently, the circuit court's findings of fact concerning Peek's permanent total disability claim have no effect on the circuit court's ultimate decision to affirm the Appellate Panel's permanent partial disability award, which was supported by substantial evidence.

3.  We find the circuit court did not err in affirming the Appellate Panel's decision to deny Peek a lump sum payment.  The Appellate Panel has discretion to determine whether a lump sum award would be appropriate.  See S.C. Code Ann. § 42-9-301 (1976) (providing the court may award a lump sum payment for workers' compensation claims); see also Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 878 (Ct. App. 2006) (finding this court looks for whether the Appellate Panel abused its discretion when making its decision concerning lump sum payments).  Peek's argument that lump sum payment must be awarded if it is in the employee's best interests is unpersuasive because the employee's best interest is just one part of the analysis.  The reviewing court must also consider whether the lump sum payment would prevent an undue hardship upon the employer without prejudicing the employee's interest.  No evidence supports a finding that the Appellate Panel's refusal to not award a lump sum payment was not in Peek's best interests.  Additionally, the Appellate Panel properly determined that any lump sum award would be based upon surmise, conjecture, or speculation because Peek's future earnings were unknown.  See Hutson v. State Ports Auth., 390 S.C. 108, 113, 700 S.E.2d 462, 465 (Ct. App. 2010) (holding the award of a lump sum payment "may not be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it" (citation and internal quotation marks omitted)).  

Accordingly, the decision of the circuit court is

AFFIRMED.

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


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