McDaniel v. Career Employment ( 2019 )

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
John McDaniel, Employee, Claimant, Appellant,
v.
Career Employment Professional d/b/a Snelling Staffing,
Employer, and United Wisconsin Insurance Co., Carrier,
Respondents.
Appellate Case No. 2017-001217
Appeal From The Workers' Compensation Commission
Unpublished Opinion No. 2019-UP-140
Submitted March 1, 2019 – Filed April 17, 2019
Withdrawn, Substituted, and Refiled August 28, 2019
AFFIRMED
John McDaniel, of Charleston, pro se.
Allison Cauthen Nussbaum, R. Mark Davis, and Helen
Faith Hiser, all of McAngus Goudelock & Courie, LLC,
of Mount Pleasant, for Respondents.
PER CURIAM: John McDaniel—an employee at Career Employment
Professional d/b/a Snelling Staffing (Snelling Staffing), a temporary staffing
agency—injured his left foot while working at his work placement site, Alside
Revere. He filed a workers' compensation claim against Snelling Staffing and
United Wisconsin Insurance Company (collectively, Respondents). McDaniel
appeals the Appellate Panel of the South Carolina Workers' Compensation
Commission's (Appellate Panel) order, arguing nineteen issues.1 We affirm
pursuant to Rule 220(b), SCACR.2
1
(1) Did the single commissioner violate McDaniel's rights by failing to enforce
his subpoenas at the remand hearing?; (2) Did the single commissioner violate
McDaniel's rights by failing to accept deposition testimony and additional records
at the remand hearing?; (3) Did the Appellate Panel violate McDaniel's rights by
providing insufficient notice of the review hearing?; (4) Did the single
commissioner violate McDaniel's rights by limiting the scope of the single
commissioner remand hearing?; (5) Did the Appellate Panel violate McDaniel's
rights by limiting the scope of the record on review?; (6) Did the Appellate Panel
violate McDaniel's rights in finding his amended Form 30 was not properly before
the panel?; (7) Did the Appellate Panel err in failing to grant McDaniel's request
for extended oral argument?; (8) Did the single commissioner violate McDaniel's
rights by failing to rule on his proposed findings of fact?; (9) Did the Appellate
Panel violate McDaniel's rights by failing to rule on his proposed findings of fact?;
(10) Did the Appellate Panel err in failing to sustain McDaniel's objection to
Snelling Staffing's authorship of the panel's order?; (11) Does section 42-9-90 of
the South Carolina Code (2015) statutorily mandate the Appellate Panel to apply
penalties against Respondents?; (12) Does section 42-9-260 of the South Carolina
Code (2015) statutorily bar the Appellate Panel from granting the credit to
Respondents if penalties are due?; (13) Did the Appellate Panel err in finding that,
pursuant to Curiel v. Environmental Management Services (MS), 376 S.C. 23, 655
S.E.2d 482 (2007), Respondents must receive a credit for all weekly benefits paid
after the date of maximum medical improvement (MMI)?; (14) Did the Appellate
Panel err in excluding earning at Alside Revere by Lampkin?; (15) Does section
42-1-40 of the South Carolina Code (2015) statutorily mandate the Appellate panel
to calculate weeks and parts thereof when determining the average weekly wages
of McDaniel, Lampkin, and Clark?; (16) Did the Appellate Panel err in the
determination of the method to be used to calculate average weekly wage?; (17)
Did the Appellate Panel err in the determination of the extent of McDaniel's
disability?; (18) Did the Appellate Panel err in determining McDaniel's disability
under scheduled loss?; and (19) Did the Appellate Panel err in finding substantial
evidence supported a finding McDaniel was at MMI as of August 13, 2012?
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
1. As to issues one, two, four, and eight, the Appellate Panel did not err in
deciding not to review any other issues arising out of the remand hearing before
the single commissioner other than the specific issue the Appellate Panel ordered
to be remanded. See Hutson v. S.C. State Ports Auth., 399 S.C. 381, 387, 732
S.E.2d 500, 503 (2012) ("Under [the standard of review found in the
Administrative Procedures Act], we can reverse or modify the [Appellate Panel's]
decision only if the claimant's substantial rights have been prejudiced because the
decision is affected by an error of law or is clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record."); id. (stating
substantial evidence is evidence that, when considering the record as a whole,
would allow reasonable minds to reach the same conclusion the Appellate Panel
reached); S.C. Code. Ann. Regs. 67-707(A) (2012) (providing for the review of
additional evidence by the single commissioner on remand from the Appellate
Panel); S.C. Code. Ann. Regs. 67-707(C)(2) (2012) (providing the procedure for
admitting additional evidence and stating that once the Appellate Panel grants the
motion to admit the additional evidence, "the review hearing is stayed [and t]he
case will be remanded to the [single c]ommissioner . . . ." Further, once the single
commissioner has "issue[d] his or her findings and recommendations in the form of
an order to the Commission and the parties[,] . . . [u]pon the receipt of the
Commissioner's order, the [WCC] will reset the case on the review hearing
docket.").
2. As to issues three, eleven, twelve, and eighteen, we find these issues not
preserved for appellate review. See Smith v. NCCI, Inc., 369 S.C. 236, 256, 631
S.E.2d 268, 279 (Ct. App. 2006) ("Only issues raised and ruled upon by the
[Appellate Panel] are cognizable on appeal.").
3. As to issue seven, the Appellate Panel did not err by refusing to extend the time
for oral arguments. See Hutson, 399 S.C. at 387, 732 S.E.2d at 503 ("Under [the
standard of review found in the Administrative Procedures Act], we can reverse or
modify the [Appellate Panel's] decision only if the claimant's substantial rights
have been prejudiced because the decision is affected by an error of law or is
clearly erroneous in view of the reliable, probative, and substantial evidence on the
whole record."); S.C. Code Ann. Regs. 67-706(A) (2012) ("Each party is permitted
ten minutes for oral argument. The appellant is permitted three minutes for
reply."); S.C. Code Ann. Regs. 67-706(C) (2012) ("A party may request additional
time for argument by attaching a motion to the Form 30. The Commission will
issue an order before the case is set for argument.").
4. As to issues five and six, the Appellate Panel did not err in finding McDaniel's
Form 30 was not properly before the panel. See Hutson, 399 S.C. at 387, 732
S.E.2d at 503 ("Under [the standard of review found in the Administrative
Procedures Act], we can reverse or modify the [Appellate Panel's] decision only if
the claimant's substantial rights have been prejudiced because the decision is
affected by an error of law or is clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record."); compare S.C. Code Ann. Regs.
67-701 (2012) (explaining the procedure for requesting a review hearing with
Form 30), with S.C. Code Ann. Regs. 67-609, 67-610 (2012) (providing for the
amendment of a request for a single commissioner hearing, Form 50, or Form 52).
5. As to issues nine and ten, the Appellate Panel did not err in failing to rule on
McDaniel's proposed findings of facts or by requesting Snelling Staffing prepare a
proposed order. See Hutson, 399 S.C. at 387, 732 S.E.2d at 503 ("Under [the
standard of review found in the Administrative Procedures Act], we can reverse or
modify the [Appellate Panel's] decision only if the claimant's substantial rights
have been prejudiced because the decision is affected by an error of law or is
clearly erroneous in view of the reliable, probative, and substantial evidence on the
whole record.").
6. As to issue thirteen, we find substantial evidence supports the Appellate Panel's
finding that Snelling Staffing was entitled to a credit of temporary total disability
payments made after McDaniel reached MMI. See id. (stating substantial evidence
is evidence that, when considering the record as a whole, would allow reasonable
minds to reach the same conclusion the Appellate Panel reached); Curiel, 376 S.C.
at 29, 655 S.E.2d at 485 ("[T]he date of maximum medical improvement signals
the end of entitlement to temporary total [disability] benefits."); Watson v. Xtra
Mile Driver Training, Inc., 399 S.C. 455, 465, 732 S.E.2d 190, 195-96 (Ct. App.
2012) (holding the employer was entitled to recover any payment it made to the
claimant for temporary total disability that was made to the claimant after the date
the claimant reached MMI).3
7. As to issue fourteen, substantial evidence supports the Appellate Panel's finding
that there was no guarantee he would have continued with his assignment at Alside
Revere. See Hutson, 399 S.C. at 387, 732 S.E.2d at 503 (stating substantial
3
To the extent McDaniel argues the Appellate Panel erred in failing to find the
single commissioner misunderstood Curiel, we find that issue was not preserved
for appellate review. See Smith, 369 S.C. at 256, 631 S.E.2d at 279 ("Only issues
raised and ruled upon by the [Appellate Panel] are cognizable on appeal.").
evidence is evidence that, when considering the record as a whole, would allow
reasonable minds to reach the same conclusion the Appellate Panel reached).
8. As to issue fifteen and sixteen, substantial evidence supports the Appellate
Panel's determination of his average weekly wage. See Hargrove v. Titan Textile
Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004) ("The Appellate
Panel is the ultimate fact finder in [w]orkers' [c]ompensation cases . . . ."); Hutson,
399 S.C. at 387, 732 S.E.2d at 503 (stating substantial evidence is evidence that,
when considering the record as a whole, would allow reasonable minds to reach
the same conclusion the Appellate Panel reached); S.C. Code Ann. § 42-1-40(2015) (finding an alternative method of calculating a claimant's average weekly
wage may be employed under exceptional circumstances to "most nearly
approximate the amount which the injured employee would be earning were it not
for the injury"); Sellers v. Pinedale Residential Ctr., 350 S.C. 183, 191, 564 S.E.2d
694, 698 (Ct. App. 2002) ("The objective of wage calculation is to arrive at a fair
approximation of the claimant's probable future earning capacity." (emphasis
added) (quoting Bennett v. Gary Smith Builders, 271 S.C. 94, 98, 245 S.E.2d 129,
131 (1978))).
9. As to issue seventeen, substantial evidence supports the Appellate Panel's ruling
on McDaniel's disability rating. See Hutson, 399 S.C. at 387, 732 S.E.2d at 503
(stating substantial evidence is evidence that, when considering the record as a
whole, would allow reasonable minds to reach the same conclusion the Appellate
Panel reached); Sanders v. MeadWestvaco Corp., 371 S.C. 284, 291, 638 S.E.2d
66, 70 (Ct. App. 2006) ("While an impairment rating may not rest on 'surmise,
speculation or conjecture . . . it is not necessary that the percentage of disability or
loss of use be shown with mathematical exactness.'" (alteration in original)
(quoting Roper v. Kimbrell's of Greenville, Inc., 231 S.C. 453, 461, 99 S.E.2d 52,
57 (1957))); Wise v. Wise, 394 S.C. 591, 597, 716 S.E.2d 117, 120 (Ct. App. 2011)
("The Appellate Panel's decision must be affirmed if supported by substantial
evidence in the record.").
10. As to issue nineteen, we find this issue was not preserved for appellate review.
See JASDIP Props. SC, LLC v. Estate of Richardson, 395 S.C. 633, 641, 720
S.E.2d 485, 489 (Ct. App. 2011) ("An issue conceded in the trial court cannot be
argued on appeal."); Smith, 369 S.C. at 256, 631 S.E.2d at 279 ("Only issues raised
and ruled upon by the [Appellate Panel] are cognizable on appeal.").
AFFIRMED.
WILLIAMS, GEATHERS, and HILL, JJ., concur.