Hutson v. South Carolina State Ports Authority

Justice PLEICONES.

I respectfully dissent. While it may seem a harsh result to deny petitioner partial disability under S.C.Code Ann. § 42-9-20 (1985), I believe there is substantial evidence to uphold the finding that he did not meet his burden of proof. I would therefore affirm.

I begin by noting that petitioner bears the burden of proving wage loss under § 42-9-20. E.g. Bass v. Kenco Group, 366 S.C. 450, 622 S.E.2d 577 (2005). Petitioner was interviewed by a vocational specialist in September 2005, and she issued a written report in October 2005. In this report, the expert noted petitioner had a “high school level of education with some course work at Trident Tech.” She opined that if petitioner were to obtain an above minimum wage job, he would require “a [sic] myriad of services to include career counseling ... occupational skill training in either a classroom or the job setting, and selected job placement____” There is no evidence in the record that petitioner discussed his interest in the hospitality industry with this expert. Thus, her report does not address the viability of petitioner’s subsequent decision to enter the restaurant business.

At the hearing in August 2006, petitioner introduced the vocational specialist’s report. He also took the stand and testified to his intent to enter the restaurant business in the near future. The single commissioner found the following factual findings regarding petitioner’s wage loss claim:

Claimant has failed to prove that he suffered a loss of earning capacity under § 42-9-20. Claimant testified that at the time of the hearing that [sic] he is planning on getting into the restaurant business. Claimant testified that he has family members in the restaurant business and he is aware of what it entails to work in the business. Claimant testified that he is able to manage or supervise a restaurant. Claimant testified that he would like to have a restaurant that seats 120 people. Claimant was unable to testify as to what his productive earnings would be in the restaurant business, therefore, there is absolutely no way for this Commissioner to determine any loss of earning capacity based on the testimony of the Claimant. Furthermore, when asked by this Commissioner, Claimant *392testified that he understood that even if he owned a restaurant he would still have to figure out the menu, write the checks, pay the bills and stand if he worked the registers. In addition, he admitted that he would have to stand to help in the kitchen as well. Based on Claimant’s testimony I find that claimant understands what it entails to run a restaurant and he believes that he can do this type of work.

(Emphasis supplied.)

The single commissioner found that, by his own testimony concerning his intention to run a restaurant, petitioner failed to prove a loss of earning capacity. The question of proof of a loss of earning ability is one of substantial evidence. E.g. Fields v. Owens Corning Fiberglas, 301 S.C. 554, 393 S.E.2d 172 (1990). Substantial evidence exists to support an administrative factual finding if, viewing the record as a whole, reasonable minds could reach the same conclusion. E.g., Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). Evidence of probable future earning capacity is not unduly speculative where supported by the evidence such as the employee’s own testimony. See Sellers v. Pinedale Residential Center, 350 S.C. 183, 564 S.E.2d 694 (Ct.App.2002) (substantial evidence of future earning capacity to determine average weekly wages). Further, the fact that one could draw inconsistent conclusions from the evidence does not mean the administrative decision is not supported by substantial evidence. E.g., S.C. Coastal Conser. v. League v. Dep’t of Health and Envtl. Control, 363 S.C. 67, 610 S.E.2d 482 (2005). Finally, neither the commission nor a court is required to accept expert evidence over lay testimony. E.g., Tiller v. Nat’l Health Care Ctr. of Sumter, 334 S.C. 333, 513 S.E.2d 843 (1999).

Here, the Full Commission, circuit court, and Court of Appeals all found substantial evidence supported the single commissioner’s finding that petitioner did not meet his burden of proving wage loss. Given petitioner’s extensive testimony regarding his intent to operate or work in a restaurant, I agree that substantial evidence supports the finding that petitioner has future earning capacity. I also agree that petitioner’s failure to present any evidence of the income he can be expected to earn as a result of his change in profession supports the Full Commission’s finding, affirmed by the circuit *393court and the Court of Appeals, that petitioner did not meet his burden of proof under § 42-9-20 to prove wage loss.

I would affirm.