Gordon v. Michelin North America, Inc

THE STATE OF SOUTH CAROLINA THE STATE OF SOUTH CAROLINA In The Court of Appeals Mickey Gordon, Appellant, v. Michelin North America, Inc., Employer, and, ACE USA (f/k/a CIGNA EI), Carrier, Respondents. Appeal From Spartanburg County Gary E. Clary, Circuit Court Judge Unpublished Opinion No. 2003-UP-382 Submitted March 26, 2003 – Filed June 3, 2003 REVERSED and REMANDED William G. Rhoden, of Gaffney, for Appellant. H. Spencer King, of Spartanburg, for Respondent. PER CURIAM: In this worker’s compensation case, Mickey Gordon (Gordon), the employee, appeals from a circuit court order affirming the findings of the Full Commission. Gordon argues the circuit court erred because the Commission failed to make specific findings in regard to compensating Gordon for partial disability under S.C. Code Ann. § 42-9-20 (1976 as amended). FACTS Gordon, a tire builder employed by Michelin North America, Inc., for sixteen (16) years, tripped and fell at work injuring his lower back. Gordon’s responsibilities at the factory required him to lift and move heavy reels of rubber. Robert E. LeBlond, M.D. of Upstate Medical Rehabilitation, P.C primarily treated Gordon. Gordon’s injuries did not require surgical intervention. On March 22, 2001, Dr. LeBlond opined that Gordon had reached maximum medical improvement and assigned 5% whole person impairment rating. Gordon was also seen by Kevin W. Kopera, M.D. for an Independent Medical Examination and Functional Capacity Evaluation. On June 21, 2001, Dr. Kopera opined Gordon had 5% impairment to his back. Gordon was paid temporary total benefits from March 12, 2000, at the maximum compensation rate for 2000 of $507.34 per week. Michelin filed the Form 21 to stop payment of temporary total benefits contending Gordon had reached maximum medical improvement and for an assessment of disability. The hearing was held on July 31, 2001, before the Single Commissioner. The Single Commissioner by decision and Order filed October 16, 2001 concluded Gordon had reached maximum medical improvement on March 22, 2001, and had suffered partial permanent disability of 15% to the back. The Single Commissioner also found that Michelin was entitled to a credit for all temporary total payments paid since June 19, 2001. The Commissioner noted, “This finding is based upon the medical evidence, limitations expressed by the physicians and vocational evidence.” Gordon filed a Form 30 requesting a review of the Single Commissioner’s decision by the Full Commission. Among the issues Gordon raised for review, was his contention the Single Commissioner failed to consider his loss of earning capacity pursuant to S.C. Code Ann. § 42-9-20 (1976 as amended). Gordon asserted this was error because he pursued his claim under both the scheduled losses and the general disability provision of the code. The Appellate Panel of the Commission affirmed in full the decision of the Single Commissioner by Order dated March 20, 2002. The Commission declined to address Gordon’s claim for consideration under § 42-9-20. Gordon then filed for judicial review and a hearing was held before the Honorable Gary E. Clary, Circuit Court Judge, on August 15, 2002. Gordon, again, raised several issues including the fact the Full Commission failed to consider his loss of earning capacity pursuant to § 42-9-20. Judge Clary issued an Order on September 3, 2002, affirming the decision of the Commission. Gordon appeals. STANDARD OF REVIEW The duty to determine facts is placed solely on the Commission. The court reviewing the commission’s decision has no authority to determine factual issues but must remand the matter to the Commission for further proceedings. On appeal from the Commission, this court may not substitute its judgment for the Commission’s as to the weight of evidence on questions of fact, but may reverse when the decision is affected by an error of law. The appellate court’s review is limited to deciding whether the Commission’s decision is unsupported by substantial evidence or is controlled by some error of law. Hendricks v. Pickens County, 335 S.C. 405, 410-411, 517 S.E.2d 698, 701 (Ct. App. 1999) (internal citations omitted). DISCUSSION Gordon argues he was qualified to receive disability compensation under the general disability statute, S.C. Code Section 42-9-20 (1976 & Supp. 1998). He argues the Commission did not properly consider awarding compensation under § 42-9-20 for loss of earnings. Accordingly, Gordon urges this case should be reversed and remanded on the question of the applicability of the general disability statute. We agree. Gordon argues the case of Hendricks v. Pickens County, 335 S.C. 405, 517 S.E.2d 698 (Ct. App. 1999) is squarely on point. In Hendricks, the appellant asserted his right to general disability compensation before the single commissioner. The commissioner failed to address the issue. Hendricks subsequently raised the issue before the Full Commission and the circuit court. As in the instant case, the Full Commission declined to address whether Hendricks was entitled to total or partial disability benefits under the statute. This court determined such a failure on the part of the Commission was error and remanded to the Commission for specific findings as to whether Hendrick’s disability extends beyond the disabilities to the scheduled members. Hendricks, 335 S.C. at 411-412, 517 S.E.2d at 702. (Emphasis added) In the instant case, Gordon clearly asserted his entitlement to general disability compensation before the Single Commissioner. “A claimant may proceed under § 42-9-10 or § 42-9-20 to prove a general disability; alternatively, he or she may proceed under § 42-9-30 to prove a loss, or loss of use of, a member, organ, or part of the body for which specific awards are listed in the statute.” Id. (quoting Fields v. Owens Corning Fiberglass, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990)). The Single Commissioner did not make specific findings as to whether Gordon was entitled to general disability benefits. Gordon also raised the issue before the Full Commission and the circuit court. The Respondent and the circuit court both rely heavily on a general sentence from the Commissioner noting her finding Gordon had a partial permanent disability of 15% to the back “ is based upon the medical evidence, limitations expressed, and vocational evidence.” (Emphasis added) Michelin argued the inclusion of the words “vocational evidence” was enough to distinguish this case from Hendrick but declined to elaborate on how the general reference was sufficient to demonstrate the Single Commissioner had made specific findings as to whether Gordon came within the general disability statute. The circuit court was even less illuminating. The circuit court order stated “The Single Commissioner specifically found as a finding of fact that this ‘finding is based upon medical evidence . . . and vocational evidence.” The court then summarily noted that the decision to award compensation under a particular statutory provision is that of the Commission and found the appeal to be without merit. The Full Commission was silent on the issue. The Single Commissioner did not properly consider whether or not Gordon’s case should be awarded under S.C. Code § 42-9-20 by simply including the words “vocational evidence” in a general statement of findings. These words, alone, cannot be imputed to contain specific findings of fact and conclusions of law or represent the substantial evidence required to gird the Commissioner’s conclusions. Thus, the Full Commission should have addressed the matter on appeal and their silence constituted error. See Morgan v. JPS Automotives, 321 S.C. 2012, 2014-15, 467 S.E.2d 457, 459 (Ct. App. 1996) (case remanded to Commission for specific findings of fact where Single Commissioner failed to make any findings regarding appellant’s claim that disability extended beyond disability to a scheduled member), cert. dismissed as improvidently granted, 326 S.C. 261, 486 S.E.2d 263 (1997). Accordingly, we must remand this issue to the Full Commission for specific findings as to whether Gordon’s disability extends beyond the disabilities to the scheduled member such that he is entitled to benefits under § 42-9-20. The decision of the circuit court is, REVERSED and the case is REMANDED to the Full Commission for review consistent with this opinion. CURETON, ANDERSON and HUFF, JJ., concur.