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
Goldie Woodie, Employee, Appellant,
Hamrick Mills, Inc., Employer, and Gallagher Bassett Services, Inc., Carrier, Respondents.
Appeal From Cherokee County
J. Mark Hayes, II, Circuit Court Judge
Unpublished Opinion No. 2012-UP-027
Heard January 12, 2012 – Filed January 25, 2012
John S. Nichols and Blake A. Hewitt, both of Columbia; and S. Belinda Ellison, of Lexington, for Appellant.
Bradford B. Easterling, of Greenville, for Respondents.
PER CURIAM: This appeal arises out of the denial of Appellant Goldie Woodie's claim for benefits by the Workers' Compensation Commission (the Commission). The circuit court affirmed the denial by the Commission. On appeal, Woodie claims the circuit court erred in: (1) finding the hernia statute precludes benefits for a hernia aggravated by a work-related injury and (2) making a gratuitous finding that even if the rules of statutory construction require a distinction between "hernia" and "rupture," the facts do not support such a distinction. We affirm.
1. As to Woodie's argument that the court erred in finding section 42-9-40 (1985) prevents recovery, we find no error of law and substantial evidence in the record on appeal to support the finding of the Commission that Woodie failed to carry his burden of proving he suffered a compensable hernia. See S.C. Code Ann. § 42-9-40(5) ("In all claims for compensation from hernia or rupture, resulting from injury by accident arising out of and in the course of the employee's employment, it must be definitely proved to the satisfaction of the Commission . . . [t]hat the hernia or rupture did not exist prior to the accident for which compensation is claimed.") (emphasis added); Jordan v. Kelly Co., 381 S.C. 483, 487, 674 S.E.2d 166, 169 (2009) ("Although the record contains conflicting evidence, this Court is not in a position to weigh the evidence presented in [a] workers' compensation hearing."); ESA Servs., LLC v. S.C. Dep't of Revenue, 392 S.C. 11, 24, 707 S.E.2d 431, 438 (Ct. App. 2011) (holding a reviewing court may reverse or modify decisions that are controlled by error of law or are clearly erroneous in view of the substantial evidence on the record as a whole). To the extent Woodie argues the only evidence in the record is that he did not have a rupture prior to the workplace accident, we find this argument unpreserved for appellate review. See Bazen v. Badger R. Bazen Co., 388 S.C. 58, 65, 693 S.E.2d 436, 440 (Ct. App. 2010) (noting only issues raised to and ruled upon by the Commission are cognizable on appeal); Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006) ("It is well settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved."); Dixon v. Dixon, 362 S.C. 388, 399, 608 S.E.2d 849, 854 (2005) (holding an issue raised for the first time in a Rule 59, SCRCP motion is not preserved for review).
2. As to Woodie's argument that the circuit court erred in noting the facts of this case do not support a distinction between the statutory terms "hernia" and "rupture," we find this issue unpreserved for review. See Dixon, 362 S.C. at 399, 608 S.E.2d at 854 (finding an issue raised for the first time in a Rule 59, SCRCP motion is not preserved for review). This distinction was never developed in the record before the Commission, nor did the Commission ever address the distinction. See Bazen, 388 S.C. at 65, 693 S.E.2d at 440 (Ct. App. 2010) (noting only issues raised to and ruled upon by the Commission are cognizable on appeal).
HUFF, PIEPER, and LOCKEMY, JJ., concur.