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Roberts v. McNair Law Firm and Companion Commercial Ins. Co.6/13/2005
Opinion
Submitted May 1, 2005
AFFIRMED
Carol Roberts appeals the circuit court's order affirming the workers' compensation commission's decision to calculate her compensation rate without considering merit raises she received after her injury. Additionally, Roberts appeals the decision to count "half weeks" of work against the allocated recovery period. We affirm.
FACTS
Roberts was employed at the McNair Law Firm as a paralegal. On October 1, 1998, she tripped over a box of files and suffered a herniated disk. After an initial period of treatment, she was admitted to the hospital where a surgeon performed a laminectomy and fusion procedure. She returned to work part-time on May 31, 2000, and was paid temporary partial disability compensation . After her injury, Roberts received three merit raises. Due to her injury, Roberts stopped working on June 19, 2001.
Roberts filed for total permanent workers' compensation benefits. After a hearing on May 14, 2002, the single commissioner found Roberts totally and permanently disabled. In an order dated March 10, 2003, the single commissioner made the following pertinent findings: (1) McNair paid all the temporary disability compensation for which they were liable; (2) Roberts sustained a greater than 50% permanent loss of the use of her back as a result of the injury; (3) there were no exceptional circumstances to warrant departure from the method of average weekly wage calculations under section 42-1-40 of the Workers' Compensation Act; and (4) Roberts was entitled to 500 weeks of compensation less the number of weeks of temporary disability compensation already received.
Roberts appealed to the full commission arguing entitlement to a compensation rate that included the merit raises she received during her part-time employment. Additionally, Roberts alleged the single commissioner erred by counting "half weeks," when she worked part-time, as full weeks against the statutory 500-week recovery period.
The full commission adopted the commissioner's order and affirmed. The circuit court likewise affirmed.
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, 134-35, 276 S.E.2d 304, 306 (1981). In an appeal from the commission, this court may not substitute its judgment for that of the full commission as to the weight of the evidence on questions of fact. S.C. Code Ann. ยง 1-23-380(A)(6) (2005). The appellate court may reverse or modify the full commission's decision only if the claimant's substantial rights have been prejudiced because the decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Id.
LAW/ANALYSIS
A. Calculation of Compensation Rate
Roberts contends the commission erred by failing to include her post-injury merit increases in calculating her compensation rate. We disagree.
Section 42-1-40 states:
'Average weekly wages' means the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury . . . . 'Average weekly wage' must be calculated by taking the total wages paid for the last four quarters immediately preceding the quarter in which the injury occurred . . . divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less.
When for exceptional reasons t
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