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South Carolina
Judicial Department
2011-UP-178 - Merck v. J.D. Hollingsworth On Wheels, Inc.


In The Court of Appeals

Donnie Merck, Employee, Appellant,


J. D. Hollingsworth On Wheels, Inc., Employer, and Twin City Insurance Co., Carrier, Respondents.

Appeal from
the South Carolina Workers’ Compensation Commission

Unpublished Opinion No. 2011-UP-178
Submitted March 1, 2011 – Filed April 19, 2011



John P. Mann, Jr., of Greenville, for Appellant.

Duke K. McCall, Jr., and C. Frederic Marcinak, both of Greenville, for Respondents.

PER CURIAM:  Donnie Merck appeals a decision by the Appellate Panel of the Workers' Compensation Commission (the Appellate Panel) denying him total and temporary disability benefits and medical expenses for failing to sufficiently notify J. D. Hollingsworth on Wheels, Inc. (Employer) of injuries to his shoulder and knee within ninety days of when he discovered the injuries were work-related.  Merck argues the Appellate Panel erred in (1) applying the ninety-day notice requirement to his repetitive trauma claims; (2) barring his claims for failure to comply with that requirement; and (3) failing to grant an upward adjustment to his average weekly wage.  We affirm.[1]

"[T]his court can reverse or modify the Appellate Panel's decision only if . . . 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."  Watt v. Piedmont Auto., 384 S.C. 203, 207, 681 S.E.2d 615, 617 (Ct. App. 2009) (citations omitted).  "Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached."  Id. (citation and internal quotation marks omitted).

1. Merck first claims the ninety-day notice requirement does not apply to his claims because the 2007 amendments to the Workers' Compensation Act (the Act) impliedly remove the notice requirement in repetitive trauma cases.  We disagree. 

Under the Act, an employee must give notice to an employer "within ninety days of the date the employee discovered . . . his condition is compensable . . . ."  S.C. Code Ann. § 42-15-20(C) (Supp. 2010).  The 2007 amendments to the Act provide that a claimant's testimony cannot establish "cause" in a legal hearing, but those amendments do not directly state nor imply they affect the notice requirement.  See S.C. Code Ann. § 42-1-172(B) (Supp. 2010) (providing that a repetitive trauma injury is not compensable "unless a commissioner makes a specific finding of fact . . . of a causal connection that is established by medical evidence between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury"); id. § 42-1-172(C) ("'[M]edical evidence' means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.").  Notice requires only the employer's knowledge of facts that connect the injury with the employment, and it can be established by knowledge the injury occurred and of the claimant's work responsibilities.  Etheredge v. Monsanto Co., 349 S.C. 451, 459, 562 S.E.2d 679, 683 (Ct. App. 2002). 

2. As to whether the Appellate Panel erred in barring Merck's claims for failure to comply with the ninety-day notice requirement, we affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: S.C. Code Ann. § 42-15-20(C) (Supp. 2010) (stating a claimant cannot receive compensation for a repetitive trauma injury unless the claimant gives notice to the employer "within ninety days of the date the employee discovered . . . that his condition is compensable . . ."); Etheredge, 349 S.C. at 459, 562 S.E.2d at 683 ("[N]otice is adequate, when there is some knowledge of accompanying facts connecting the injury or illness with the employment, and signifying to a reasonably conscientious supervisor that the case might involve a potential compensation claim."); see also Watt, 384 S.C. at 207, 681 S.E.2d at 617 ("The possibility of drawing two inconsistent conclusions does not prevent the Appellate Panel's conclusions from being supported by substantial evidence."); Bass v. Isochem, 365 S.C. 454, 473, 617 S.E.2d 369, 379 (Ct. App. 2005) ("The burden is upon the claimant to show compliance with the notice provisions of section 42-15-20.").

3. As to whether the Appellate Panel erred in failing to grant an upward adjustment to his average weekly wage, we affirm pursuant to Rule 220(b)(1), SCACR, and the following authority: Bailey v. S.C. Dep't of Health, 388 S.C. 1, 8, 693 S.E.2d 426, 430 (Ct. App. 2010) (holding that an appellate court need not address remaining issues when a decision on a prior issue is dispositive). 


HUFF, SHORT, and PIEPER, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.