Abrams v. Nan Ya Plastics Corp. ( 2012 )

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

James D. Abrams, Appellant,

v.

Nan Ya Plastics Corporation, Employer, and Ace Fire Underwriters Insurance Company, Carrier, Respondents.

---

Appeal From the Appellate Panel
South Carolina Workers' Compensation Commission

---

Unpublished Opinion No. 2012-UP-325  
Submitted May 1, 2012 – Filed May 30, 2012

---

AFFIRMED

---

Steve Wukela Jr., of Florence, for Appellant.

John C. Bruton Jr., of Columbia, for Respondents. 

PER CURIAM: James Abrams (Employee) appeals the order of the Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel), arguing the Appellate Panel erred in (1) finding Employee did not suffer a work-related injury on June 24, 2008, and (2) drawing a negative inference from Employee's failure to call an alleged eyewitness of the work-related injury.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:

1. Given the conflicting testimony concerning the cause of Employee's injury, we find substantial evidence in the record to support the Appellate Panel's finding Employee did not suffer a work-related injury on June 24, 2008.  See Robbins v. Walgreens & Broadspire Servs., Inc., 375 S.C. 259, 264, 652 S.E.2d 90, 93 (Ct. App. 2007) ("The South Carolina Administrative Procedures Act establishes the standard of review for decisions by the [Appellate Panel].  In workers' compensation cases, the [Appellate Panel] is the ultimate fact finder.  The Appellate Panel is specifically reserved the task of assessing the credibility of the witnesses and the weight to be accorded evidence.  Thus, this court will not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact . . . .  Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached." (citations and internal quotation marks omitted)); see also Sharpe v. Case Produce, Inc., 336 S.C. 154, 160, 519 S.E.2d 102, 105 (1999) ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent the [Appellate Panel]'s finding[s] from being supported by substantial evidence.  Where there is a conflict in the evidence, the [Appellate Panel]'s findings of fact are conclusive. The final determination of witness credibility and the weight to be accorded evidence is reserved to the [Appellate Panel] and it is not the task of the court to weigh the evidence as found by the [Appellate Panel]." (citations omitted)). 

2.  We find the Appellate Panel did not draw a negative inference from Employee's failure to call an alleged eyewitness of the work-related injury.  See Pilgrim v. Eaton,  391 S.C. 38, 48, 703 S.E.2d 241, 246 (Ct. App. 2010) ("Our courts have frequently stated that the burden of proof is on the claimant to prove facts which will bring the injury under the coverage of the Workers' Compensation Act."); see also Davis v. By-Pass Auto Parts, Inc., 304 S.C. 75, 78, 403 S.E.2d 133, 135 (Ct. App. 1991) (finding the court did not believe the Appellate Panel applied the presumption regarding a party's failure to call a material witness within the party's control and noting nonetheless it was not error for the Appellate Panel to consider his failure to testify). 

AFFIRMED.

WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.

---

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