Lee v. Bondex, Inc.

LOCKEMY, J.,

concurring in part, dissenting in part.

I concur with the majority that there is substantial evidence in the record to support the Appellate Panel’s finding that Lee suffered a work-related accident. I also agree that we cannot review a decision that has not been made with regard to any remaining alleged injuries. However, I respectfully disagree with their decision to affirm the Appellate Panel’s conclusion that Lee was entitled to temporary total disability. I do not believe the Appellate Panel made the necessary findings of fact for this court to determine the issue.

The Appellate Panel found Lee was not offered light duty work by Bondex, and, as a result, it found he was entitled to temporary total compensation. Appellants argue that fact is not conclusive on the issue of Lee’s entitlement to total disability compensation.2 Appellants maintain Lee presented no evidence to establish a total loss of earning capacity, and thus, he was not entitled to temporary total disability compensation.

Regulation 67-503(A)(l) of the South Carolina Code (2012) provides “[tjemporary total or temporary partial compensation is incurred on the eighth calendar day of incapacity and from the first day of incapacity if the injury results in incapacity for more than fourteen calendar days. The seven and fourteen day periods need not be consecutive days.” Further, “[i]f the *105employer’s representative does not pay temporary compensation, the claimant may request a hearing to receive benefits. ...” Reg. 67-503(D).

“Disability in compensation cases is to be measured by loss of earning capacity.” Coleman v. Quality Concrete Prods., Inc., 245 S.C. 625, 628, 142 S.E.2d 43, 44 (1965) (citing Keeter v. Clifton Mfg. Co., 225 S.C. 389, 392, 82 S.E.2d 520, 522 (1954)). “Total disability does not require complete helplessness.” Id. “Inability to perform common labor is total disability for one who is not qualified by training or experience for any other employment.” Id. (citing Colvin v. E.I. Du Pont De Nemours Co., 227 S.C. 465, 474, 88 S.E.2d 581, 585 (1955)). The burden is upon the claimant “to prove, in accordance with the generally acceptable test of total disability, that he was unable to perform services other than those that were so limited in quality, dependability, or quantity that a reasonably stable market for them did not exist.” Id. at 630, 142 S.E.2d at 45; see also Watson v. Xtra Mile Driver Training, Inc., 399 S.C. 455, 463-64, 732 S.E.2d 190, 195 (Ct.App.2012). “An award in his favor may not rest on surmise, conjecture or speculation and must be founded on evidence of sufficient substance to afford a reasonable basis for it.” Coleman, 245 S.C. at 630-31,142 S.E.2d at 45.

In contrast to the majority, I believe Coleman is applicable to this case. In Coleman, the claimant sustained a work-related injury and consequently was not offered any further work from his employer because he could not perform his usual duties. Id. at 627, 142 S.E.2d at 43. He was awarded temporary total disability until the date of his hearing before a single commissioner and continuing until the claimant returned to “gainful employment suitable to his capacity,” or until it was found the total disability had ceased. Id. at 627-28, 142 S.E.2d at 44. The employer appealed the award, contending the employee had not sustained a compensable injury. Id. at 628,142 S.E.2d at 44. The award of temporary total disability was reversed “only insofar as the employee was awarded compensation for total disability beyond the date of his discharge by the operating surgeon,” and the case was remanded for determination of any partial disability that the employee might have suffered. Id. The employee appealed, and on appeal, the employer argued there was no competent *106evidence to support the finding that the employee’s earning capacity was totally destroyed as a result of his injury. Id.

Our supreme court found the employee proved he had made “not only reasonable, but diligent efforts to secure employment.” Id. at 631, 142 S.E.2d at 45. The question became whether the evidence was of sufficient substance to afford a reasonable basis for the Appellate Panel to conclude as a matter of fact “that the employee’s inability to obtain employment was due to his injury and resultant partial physical incapacity,” such that he was entitled to temporary total disability. Id. The court found the employee could have offered stronger evidence showing a causal connection between his partial physical incapacity and his unemployment but after considering his efforts in the relatively short period of three months through an employment service and some eighteen possible employers, the court could not say “the evidence was not susceptible of the reasonable inference ... that his unemployment and inability to obtain work of any kind was the direct result of his injury and resultant limited capacity.” Id. at 631,142 S.E.2d at 45-46.

Despite the majority’s assertion that the award in Coleman is not analogous to the award in this case, our supreme court explicitly stated that “[i]t should be remembered that the award here for total disability was not a permanent one, but a temporary one.” Id. at 632, 142 S.E.2d at 46. With that in mind, I believe the Appellants present a valid argument. The Appellate Panel granted temporary total disability based solely on Bondex’s refusal to offer work. I acknowledge that if Bondex had offered Lee a job, Appellants might have relieved themselves of the burden of paying compensation. See S.C.Code Ann. § 42-9-190 (1985) (“If an injured employee refuses employment procured for him suitable to his capacity and approved by the Commission he shall not be entitled to any compensation at any time during the continuance of such refusal.”). However, while Bondex’s refusal to offer work is a contributing factor to the decision of whether Lee was entitled to temporary total disability, it is not conclusive.

I find that similar to Coleman, the decision of temporary total disability must be based upon evidence that Lee is unable to perform services other than those that were so limited in *107quality, dependability, or quantity that a reasonably stable market for them did not exist to receive temporary total disability compensation. Here, the Appellate Panel did not make this crucial finding as to Lee’s inability to find other work and based their decision solely on the fact that Bondex did not offer any further light duty work. Because the Appellate Panel is the sole fact finder in workers’ compensation cases, I think it is appropriate to remand for a determination of whether Lee’s earning capacity created a total disability or partial disability.

I want to make clear that I am not making a determination as to whether evidence in the record establishes Lee is unable to obtain work of any kind. The majority appears to make findings of fact to reach their decision, and I believe that is a function of the Appellate Panel and not this court. See Bartley v. Allendale Cnty. Sch. Dist., 392 S.C. 300, 310-11, 709 S.E.2d 619, 624 (2011) (finding this court arguably made improper findings of fact instead of remanding the issue to allow the Appellate Panel to make the necessary factual findings and legal conclusions to resolve the claims); see, e.g., Fox v. Newberry Cnty. Mem’l Hosp., 319 S.C. 278, 280, 461 S.E.2d 392, 394 (1995) (“The duty to determine facts is placed solely on the Commission and the court reviewing the decision of the Commission has no authority to determine factual issues but must remand the matter to the Commission for further proceedings. The reviewing court may not make findings of fact as to basic issues of liability for compensation, where, to do so, would impose upon the court the function of determining such facts from conflicting evidence.” (internal citation omitted)); cf. Smith v. NCCI, Inc., 369 S.C. 236, 252, 631 S.E.2d 268, 276-77 (Ct.App.2006) (“When an administrative agency acts without first making the proper factual findings required by law, the proper procedure is to remand the case and allow the agency the opportunity to make those findings.”). I simply believe it is the function of the Appellate Panel to make additional findings of fact as to Lee’s ability or inability to obtain other work. Accordingly, I would reverse and remand this issue for the Appellate Panel’s determination.

. In their initial brief, Appellants argue against the factual finding that they did not offer Lee any light duty work. However, the only support they offer for their argument is the light duty work offered in the days after the incident until Lee received his work restrictions. They do not specifically dispute that Lee was not offered any more work after they received his work restrictions.