Quick v. Landstar, Inc.

THE STATE OF SOUTH CAROLINA In The Court of Appeals Edward Randy Quick, Employee/Claimant, Appellant, v. Landstar Poole, Inc., Employer and National Union Fire Insurance Company, Carrier, Respondents. Appeal From Sumter County Thomas W. Cooper, Jr., Circuit Court Judge Opinion No. 2003-UP-141 Submitted January 10, 2003 - Filed February 19, 2003 AFFIRMED Kristi F. Curtis, Esquire, Joseph T. McElveen Jr.; for Appellant. Darryl D. Smalls,; for Respondents. PER CURIAM: In this workers’ compensation action, the appellate panel of the Workers’ Compensation Commission (Commission) found Edward Quick was entitled to sixteen percent (16%) permanent partial disability to the back and twelve percent (12%) permanent partial disability to the right upper extremity. The trial court affirmed. Quick appeals this finding. We affirm. FACTS Quick, a long-distance truck driver and trainer, sustained injury to his back and right shoulder after he slipped and fell while training a new Landstar employee. Over the next two years, Quick was treated for recurring back and shoulder pain, and Landstar provided Quick with temporary total disability payments. Meanwhile, Quick could not maintain his $75,000 per year job as a long-distance driver/trainer, and became a single driver for $50,000 per year. However, Quick eventually quit working for Landstar in favor of becoming a local shuttle driver for $40,000 per year, so that he would be able to care for his two children. After Quick reached maximum medical improvement, he moved for a determination of whether he was entitled to permanent partial disability. A single Commissioner noted Quick was not on prescription medication and had not undergone surgery. The Commissioner also noted Quick’s testimony that he felt he could return to long-distance truck driving. The Commissioner concluded Quick was entitled to eight percent (8%) permanent partial disability to his back and eight percent (8%) permanent partial disability to the upper extremity. The appellate panel of the Commission found Quirk was entitled to sixteen percent (16%) permanent partial disability to the back and twelve percent (12%) permanent partial disability to the right upper extremity. The Commission based the award on S.C. Code Ann. § 42-9-30 (1985 & Supp. 2002), the “scheduled disability” statute. Quick appealed to the circuit court, alleging the Commission erred in making findings of fact under the “scheduled disability” statute, rather than under S.C. Code Ann. § 42-9-20 (1985), the “general disability” statute. The circuit court judge remanded the case to the Commission for consideration of whether Quick was entitled to compensation under the general disability statute. The Commission then determined Quick was ineligible for benefits under the general disability statute, finding instead that the provisions of the scheduled disability statute were applicable. The Commission reiterated its prior finding of a sixteen percent (16%) permanent partial disability to the back and twelve percent (12%) permanent partial disability to the right upper extremity. The trial judge affirmed the Commission. Quick appeals. STANDARD OF REVIEW The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). An appellate court may reverse or modify a decision if the findings or conclusions of the commission are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001); see Brunson v. Wal-Mart Stores, Inc., 344 S.C. 107, 110, 542 S.E.2d 732, 733 (Ct. App. 2001). “Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached to justify its action.” Stokes v. First Nat’l Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 251 (1991). LAW/ANALYSIS Quick argues the trial judge erred in affirming the Commission’s determination that he was not entitled to consideration under the general disability statute. We do not agree. The scheduled loss statute reads: “[i]n cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein. . . .” S.C. Code Ann. § 42-9-30 (1985 & Supp. 2002) (emphasis supplied). Injuries to the back and upper extremity are included in this statute. See id. at § 42-9-30(19)-(20). The Commission “may award compensation to a claimant under the scheduled loss statute rather than the general disability statutes so long as there is substantial evidence to support such an award.” Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990). An award under the scheduled loss statute is premised upon the threshold requirement that the claimant prove a loss, or loss of use of, a specific “member, organ, or part of the body.” Id. at 556, 393 S.E.2d at 173. We find there was substantial evidence to justify the Commission’s decision to award benefits under the scheduled loss statute. Quick’s claim clearly falls under the mandatory language of § 42-9-30. He specifically claimed impairment to his back and right upper extremity in his original and amended Form 50 filings with the Commission. In his testimony before the Commission, Quick complained of pain in his spine, back, and shoulder. His medical records indicate treatment for injury and impairment to these areas. Further, Quick cannot prove a loss of earning capacity, which is required to prevail under § 42-9-20. See Fields, 301 S.C. at 555, 393 S.E.2d at 173 (stating “[i]t is well-settled that an award under the general disability statutes must be predicated upon a showing of a loss of earning capacity, whereas an award under the scheduled loss statute does not require such a showing.”). Quick testified that he had taken a job as a local truck driver for an annual salary of $40,000. He had been earning an annual salary of $75,000 as a long-distance driver and trainer. However, Quick testified that he had taken a voluntary reduction in his income in order to care for his children, and that he would be able to work as a long-distance truck driver. Quick’s voluntary reduction in his income does not go to prove a loss of earning capacity. As such, Quick cannot sustain recovery under § 42-9-20. See Fields, 301 S.C. at 555, 393 S.E.2d at 173. Accordingly, the trial judge did not err in affirming the Commission’s decision to award permanent partial disability under S.C. Code Ann. § 42-9-30. CONCLUSION Based on the foregoing, the decision of the circuit court is AFFIRMED. HEARN, C.J., GOOLSBY and SHULER, JJ., concur.