Nicholson v. South Carolina Department of Social Services

FEW, C.J.,

dissenting.

The events that led to Nicholson’s fall are undisputed. However, the factual inferences to be drawn from those events are disputed. The commission’s ruling that Nicholson sustained compensable injuries is based on the factual finding that Nicholson’s fall arose out of her employment, which in turn is based on factual inferences the commission drew from the events of Nicholson’s fall.

I would affirm the commission because there is substantial evidence in the record to support its findings. See Ervin v. Richland Mem’l Hosp., 386 S.C. 245, 248, 687 S.E.2d 337, 338 (Ct.App.2009) (stating “this court will affirm findings of facts made by the [commission] if those findings are supported by substantial evidence”). The evidence shows that while walking to a meeting and carrying a stack of files, Nicholson’s foot caught in the carpet due to the carpet’s friction against her shoe, causing her to trip and fall. Because Nicholson’s workplace was carpeted, the source of her injury was a risk associated with the conditions under which she was required to work. I believe this constitutes substantial evidence to support the commission’s factual finding of a causal connection between Nicholson’s injury and her employment.

The majority quotes Douglas v. Spartan Mills, Startex Division, 245 S.C. 265, 269, 140 S.E.2d 173, 175 (1965), “But [the workers’ compensation act] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause.... The causative danger must be peculiar to the work and not common to the neighborhood.” (emphasis omitted). However, whether an injury can be fairly traced to the employment and is peculiar to the work and not common to the neighborhood is a factual determination for the commis*553sion, not the courts. See Shealy v. Aiken Cnty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (“In workers’ compensation cases, the [commission] is the ultimate fact finder.”); Ervin, 386 S.C. at 249, 687 S.E.2d at 339 (stating “the question of whether an accident arises out of ... employment is largely a question of fact for the [commission]”). Our task is not to make conclusions based on the evidence before the commission, but to apply our standard of review to the commission’s conclusions. Thus, the majority violates our standard of review when it states, “[W]e cannot conclude that the carpet[ ] was peculiar to DSS and not common to the neighborhood.” See S.C.Code Ann. § 1-23-380(5) (Supp.2012) (“The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.”).

The majority relies on Grant v. Grant Textiles, 372 S.C. 196, 641 S.E.2d 869 (2007), for the proposition that in this case we may decide a factual dispute as a matter of law. I disagree that Grant applies to this case because in Grant, unlike here, there were no disputed factual inferences to be drawn from the events that led to the claimant’s injury. It was undisputed that the vice-president of sales for a textile business was traveling to meet with clients when he stopped to remove debris along the highway near the entrance to the site of the meeting and was struck by a passing vehicle. 372 S.C. at 198-99, 641 S.E.2d at 870. The issue in the case was whether, under those undisputed circumstances, his action of removing debris from along the highway arose out of and was in the course of his employment. The commission found it was not, and the court of appeals agreed with the commission’s finding that the cause of the accident had no relation to his employment duties. 372 S.C. at 200, 641 S.E.2d at 871. The supreme court disagreed stating,

The accident would not have happened but for Claimant’s business trip ... to meet his employer’s customers. Because removing road hazards was not part of Claimant’s job duties, he could have ignored the hazard in the road; however, he chose to remove the hazard to benefit himself, his co-worker father, and his customers.... Claimant’s act, while outside his regular duties, was undertaken in good *554faith to advance his employer’s interest and, therefore, was within the course of his employment.

372 S.C. at 201-02, 641 S.E.2d at 872.

Thus, the decision in Grant turned on whether the cause of the accident — deciding to remove the hazard from the road— was sufficiently connected to the employment for purposes of satisfying the arising out of and within the scope of prongs. Once the court ascertained the accident would not have happened if the employee had not traveled to the business meeting and stopped to remove the road hazard, all of which was undisputed, the legal conclusion that his actions arose out of and were in the course of employment necessarily followed. Here, despite no dispute about the events of Nicholson’s fall, there remains a factual dispute as to whether “frictioning” the carpet of the hallway while walking to a meeting was caused by the employment. The commission made a factual finding that it was because the fall occurred as a result of a risk associated with the conditions under which she worked. That factual finding should be addressed under the substantial evidence standard.