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2012-UP-111 - Hendrix v. Hollingsworth

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

Waymon D. Hendrix, Respondent/Appellant,

v.

John D. Hollingsworth on Wheels, Inc., and The Hartford, Appellants/Respondents.


Appeal From Appellate Panel
South Carolina Workers' Compensation Commission


Unpublished Opinion No. 2012-UP-111  
Heard December 6, 2011 – Filed February 22, 2012


AFFIRMED


Duke K. McCall, Jr., of Greenville, for Appellants/ Respondents.

Andrew Carl Barr, of Greenville, for Respondent/ Appellant.

PER CURIAM: Waymon Hendrix suffered injuries in an admitted work-related accident on February 12, 2008.  Prior to the accident, in September 2007, employer John D. Hollingsworth on Wheels, Inc., granted Hendrix's request to be moved from full-time to part-time employment to avoid a reduction of his social security benefits.  Hollingsworth appeals the average weekly wage calculation of the appellate panel of the workers' compensation commission.  Hendrix cross-appeals the appellate panel's finding that his cervical spine condition was not causally related to the accident.  We affirm the order of the appellate panel pursuant to Rule 220(b)(1), SCACR, and the following authorities:

(1) As to the calculation of Hendrix's average weekly wage: Pilgrim v. Eaton, 391 S.C. 38, 44-45, 703 S.E.2d 241, 244 (Ct. App. 2010) (stating the commission must calculate average weekly wage "'by taking the total wages paid for the last four quarters . . . divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less' . . . unless 'the employment, prior to the injury, extended over a period of less than fifty-two weeks,' or unless 'for exceptional reasons' it would be unfair to do so." (quoting S.C. Code Ann. § 42-1-40 (Supp. 2011))); 391 S.C. at 44, 703 S.E.2d at 243-44 (stating "an appellate court may not reverse the commission's decision [of the average weekly wage calculation] unless substantial rights of the appellant have been prejudiced because the decision is affected by an error of law, or because the factual findings are clearly erroneous in view of the reliable, probative, and substantial evidence").  We find this case distinguishable from Bennett v. Gary Smith Builders, 271 S.C. 94, 245 S.E.2d 129 (1978) for several reasons, including (1) the length of the part-time employment prior to the injury was less than five months and was therefore not permanently established, (2) the average weekly wage calculation included both full-time and part-time salary amounts, and (3) the commission specifically found the calculation to be fair and reasonable.

(2) As to the factual finding that Hendrix's cervical spine condition was not causally related to the work accident: Bartley v. Allendale Cnty. Sch. Dist., 392 S.C. 300, 306, 709 S.E.2d 619, 622 (2011) ("[T]his Court must affirm the findings of fact made by the Commission if they are supported by substantial evidence.").

AFFIRMED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.