SC Workers’ Compensation – Occupational Disease Claims – Statute of Limitations

Feb 3, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court decision discusses when the statute of limitations begins to run in occupational disease claims. Occupational disease cases are very complicated both legally and medically. A diagnosis can start the SOL in conjuction with when an injured worker is no longer able to work because of a work related condition. Better make sure your attorney is experienced in handling these type of claims. A mistake in timing can waive your claim forever.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Carolyn Holmes, Petitioner,

v.

National Service Industries, Inc., and New Hampshire Insurance Company, c/o Gallagher Bassett Services, Inc., Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge

Opinion No. 27059
Heard May 25, 2011 – Filed October 24, 2011

AFFIRMED

Malcolm M. Crosland, Jr, of The Steinberg Law Firm, of Charleston, for Petitioner.

Weston Adams, III, and William Thomas Bacon, IV, of McAngus, Goudelock & Courie, of Columbia, for Respondents.

ACTING CHIEF JUSTICE PLEICONES:  We granted certiorari to review the Court of Appeals’ opinion in Holmes v. Nat’l Servs. Indus., Op. No. 2009-UP-364 (S.C. Ct. App. filed June 25, 2009).[1]  We affirm.

FACTS

Petitioner began working for respondent National Service Industries (“National”), a linen company, at its Charleston laundering facility in August 1984.  According to petitioner, the work environment at the facility was “very hot” and “sticky” with “a lot of lint and dust in the air,” and was poorly ventilated.  Petitioner was exposed to the fumes of bleach and did not wear a protective mask.

In 1992, petitioner began experiencing breathing and sinus problems.  Petitioner never experienced breathing or sinus problems prior to working for National.  Petitioner’s breathing was “good” when she was away from work.  In 1993, National transferred petitioner to its Atlanta facility where the working conditions were worse than in the Charleston facility.  Petitioner ultimately left her employment with National because the working conditions were making her breathing problems worse.

In 1995, petitioner visited Dr. Jefrey Lieberman, who diagnosed petitioner as suffering from sarcoidosis, a respiratory and pulmonary condition.  Petitioner testified Dr. Lieberman told her he did not know what caused her sarcoidosis and that, in light of this statement, she took no further steps to determine the cause of her condition.

In July 2005, petitioner visited Dr. Michael Spandorfer.  Dr. Spandorfer stated in his report that it was unclear whether petitioner’s work exposure at National caused her sarcoidosis, but that it was more likely that petitioner’s exposure to the airborne particles and fumes worsened her condition, which had previously developed.

Petitioner filed a workers’ compensation claim alleging a compensable injury by accident to her lungs and respiratory system arising out of and in the scope of her employment with National on July 12, 2005, the date she alleges she first discovered her sarcoidosis was related to her employment.

The single commissioner found petitioner sustained a compensable injury by accident to her lungs which was discovered on July 12, 2005.

The full commission reversed the commissioner, finding petitioner’s claim was barred by the two-year statute of limitations.  Specifically, the full commission found petitioner was aware of her working conditions and, with some diligence on her part, could have discovered she had a claim more than two years before her filing date.

Petitioner appealed.  The circuit court and Court of Appeals, pursuant to Rule 220(b), SCACR, affirmed the full commission’s determination that petitioner failed to file her claim within the statute of limitations.

STANDARD OF REVIEW

In workers’ compensation cases, the Commission is the ultimate fact finder.  Jordan v. Kelly Co., 381 S.C. 483, 674 S.E.2d 166 (2009).  An appellate court must affirm the findings made by the Commission if they are supported by substantial evidence.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010).  “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.  The substantial evidence test “need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment;” and a judgment upon which reasonable men might differ will not be set aside.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981) (quoting Dickinson-Tidewater, Inc. v. Supervisor of Assess., 273 Md. 245, 329 A.2d 18, 25 (Md. 1974)).

LAW/ANALYSIS

Petitioner argues the Court of Appeals erred in holding substantial evidence in the record supported the full commission’s finding that petitioner’s claim was barred by the statute of limitations.  We disagree.

The right to workers’ compensation for an injury by accident “is barred unless a claim is filed with the commission within two years after an accident . . . .”  S.C. Code Ann. § 42-15-40 (Supp. 2010).

Under the discovery rule, the statute of limitations begins to run from the date the claimant knew or should have known that, by the exercise of reasonable diligence, a cause of action exists.  Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 20, 416 S.E.2d 639, 640 (1992).

Whether petitioner knew or should have known that her sarcoidosis was related to her employment with National over two years before filing her claim in 2005 is a question of fact for the commission.  In our view, the Court of Appeals correctly held that substantial evidence in the record supported the full commission’s finding that petitioner’s claim was barred by the statute of limitations.  Considering the record as a whole, there is substantial evidence that would allow reasonable minds to reach the conclusion that petitioner should have known she had a compensable injury when first diagnosed with sarcoidosis.  Pierre, supra.  There is evidence petitioner knew or should have known as early as 1992 her work environment was negatively affecting her health.  Petitioner testified she experienced breathing problems and lesions when she was working at National’s Charleston facility.  Petitioner also testified her breathing was “good” when she was away from work and that she ultimately left her employment with National because the working conditions were making her breathing problems worse.  Although reasonable minds may differ as to whether petitioner should have known after being diagnosed with sarcoidosis that she had a compensable injury, this is not sufficient to set aside the judgment of the Appellate Panel.  Lark, supra.

We requested the parties address whether the commission’s findings regarding compensability and causation are the law of the case.  Because we affirm the Court of Appeals’ opinion regarding the statute of limitations issue, we decline to address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591 (1999) (when one issue is dispositive, the remaining issues need not be addressed).

CONCLUSION

The Court of Appeals correctly found there was substantial evidence in the record to support the full commission’s findings that petitioner’s claim was barred by the statute of limitations.  Accordingly, the opinion of the Court of Appeals is

AFFIRMED.

KITTREDGE, J., and Acting Justice E. C. Burnett, III, concur.  BEATTY, J., dissenting in a separate opinion in which Acting Justice James E. Moore, concurs.

JUSTICE BEATTY:  I respectfully dissent, as I believe the substantial evidence in the record demonstrates Carolyn Holmes’s claim for workers’ compensation benefits was filed within two years of the date she knew or reasonably should have known that she had sustained a compensable injury.  It is not the mere existence of the injury, but also the reasonable discovery of its compensablenature, i.e., the nexus between the injury and the claimant’s employment, that is required to trigger the running of the statute of limitations.  Holmes saw no fewer than half a dozen different doctors, none of whom related her ongoing medical problems to her employment until 2005, and Holmes timely filed her claim two months thereafter.  Holmes, as a layperson, should not be held to a higher degree of medical skill than her treating physicians.  This is especially true in light of the fact that medical experts universally acknowledge that sarcoidosis is a rare condition of unknown etiology that can encompass a multitude of seemingly unrelated symptoms.  The discovery and evaluation of this complex condition is uniquely difficult, so a review of the events leading to Holmes’s claim is illustrative.

I.

National Service Industries, Inc. (“National”) is a holding company for National Linen Service Corp., a textile rental business that supplies towels, washcloths, and sheets to hotels and restaurants.  Holmes began working for National at its Charleston laundering facility in August 1984.  It is undisputed that the building was very hot and poorly ventilated, and the air contained a large amount of dust, lint, and chemical fumes.  National provided hair nets to its employees, but did not offer dust masks or any other form of respiratory protection.

In 1992, approximately eight years after Holmes began working for National, she began to have breathing and sinus problems, and some lesions appeared on her skin.  Holmes took over-the-counter medications that seemed to help.  The relief was short-lived, however, and Holmes eventually sought medical care before transferring to another National facility in Atlanta in 1993.  Holmes’s symptoms worsened, and she left National in 1994 after working at the Atlanta location for six months.

Holmes next worked for United Parcel Service for a year, and then worked for six months at the Shepherd Center, a rehabilitation hospital.  During this time, Holmes’s sinus issues remained the same.  In 1995, during her tenure at Shepherd, Holmes sought treatment at Piedmont Hospital in Atlanta.  The medical staff there diagnosed her as having allergy and sinus conditions and provided treatment in accordance with this diagnosis.

Holmes’s symptoms persisted, so she again sought treatment and was seen later in 1995 by Dr. Jefrey D. Lieberman.  Dr. Lieberman noted Holmes was suffering at that time from congestion with bloody drainage, “lumps” on various parts of her legs, upper arms, and left cheek, and changes in pigmentation on her face.  Dr. Lieberman diagnosed Holmes for the first time as having sarcoidosis, a highly variable, multi-systemic autoimmune disorder, and opined that her skin condition was indicative of the sarcoidosis and “that her sinus symptoms [were] secondary to the same process.”  He placed her on a course of medication.  During this treatment, some of Holmes’s symptoms improved.  Holmes inquired as to the cause of her sarcoidosis and Dr. Lieberman told Holmes there was no known cause.  He never advised her there was any possibility that it could be work-related.  Holmes stated that, in light of Dr. Lieberman’s statement, she had no reason to believe her condition could be related to her work.  Rather, it was her understanding that sarcoidosis was something that “just happen[s]” or “just comes.”

After working at Shepherd, Holmes was employed by Oak Hill Farm, a wine distributor, where her sinus symptoms continued unabated.  Holmes subsequently changed doctors, but none of these doctors ever related her sarcoidosis to her employment.

Since her initial symptoms, Holmes had consulted at least half a dozen doctors before she was seen in 2005 by Dr. Michael Spandorfer, of Charleston.  Although Dr. Spandorfer could not ascertain its cause, he determined that Holmes’s sarcoidosis was aggravated by her employment with National from 1984 to 1994 and her exposure to airborne particulates and fumes.  Dr. Spandorfer stated in a report dated July 12, 2005 that the work conditions at National triggered what could have been a dormant sarcoidosis condition.  Dr. Spandorfer also diagnosed Holmes with occupational-onset asthma.  This was the first time that a medical professional had ever linked Holmes’s wide range of physical problems to her employment at National.

On September 7, 2005, less than two months after Dr. Spandorfer’s evaluation, Holmes filed her workers’ compensation claim.  A single commissioner of the South Carolina Workers’ Compensation Commission concluded Holmes sustained a compensable injury by accident on July 12, 2005, “the date o[n] which the Claimant reasonably discovered the compensability of [her] injuries.”

In a split decision (2-1), the Appellate Panel reversed.  The Appellate Panel, noting it could make its own findings of fact, found an employment relationship existed at the time of Holmes’s injury by accident and that the parties had stipulated the amount of Holmes’ average weekly wage and compensation rate.  It further found that Holmes suffered from sarcoidosis and occupationally-induced asthma, “which was aggravated by, and whose development was contributed to by, her employment and exposure to airborne dust, fumes, and particulate matter,” and that she will require ongoing medical treatment for her pulmonary injury.  However, the Appellate Panel lastly found and concluded that Holmes’s claim was, nevertheless, barred by the two-year statute of limitations contained in section 42-15-40 of the South Carolina Code.

The dissenting member of the Appellate Panel stated he would affirm the commissioner because throughout all of her visits to physicians, none ever indicated Holmes’s sarcoidosis or sinus problems were related to her work at National until Dr. Spandorfer made this determination in 2005.  Further, Dr. Lieberman told Holmes that he did not know where her sarcoidosis came from, and there is no evidence in the record that would indicate Holmes was negligent in relying on Dr. Lieberman’s expert medical opinion.

Holmes appealed, challenging only the Appellate Panel’s finding that the statute of limitations had run on her claim.  She now appeals from the affirmance of the Court of Appeals.  Thus, the only issue before this Court is the timeliness of Holmes’s claim.

II.

“Under the discovery rule, the statute would begin to run from the date [the claimant] either knew or should have known of hercompensable injury.”  Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 20, 416 S.E.2d 639, 640 (1992) (emphasis added).  The claimant’s knowledge of an injury, in and of itself, is not enough to commence the running of the statute of limitations.  Rather, the claimant must also know or reasonably should have known that the injury is compensable.  Compensability is the gravamen of the claim.  The claimant must exercise reasonable diligence in discerning compensability.  See Snell v. Columbia Gun Exch., Inc., 276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981) (“The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.  The statute of limitations begins to run from this point . . . .”).

The alleged lack of diligence by Holmes is the cornerstone of the Appellate Panel’s finding that the statute of limitation bars her claim.  The Appellate Panel found that Holmes knew or reasonably should have known that she had a compensable injury based on her sarcoidosis diagnosis in 1995.  Further, it found her knowledge of her work conditions and her symptoms should have also alerted her to the compensability of her injury.

In my opinion, the substantial evidence in the record does not support these findings.  Compensability requires a nexus between the injury and the employment that is known, or reasonably should have been known, by the claimant.  The requisite nexus between Holmes’s sarcoidosis and her employment at National could not have been known by Holmes before 2005, and she should not be charged with this knowledge at a time when it was not even known by the many medical experts who treated her.

The undisputed facts establish that in 1995 Dr. Lieberman, while diagnosing Holmes with sarcoidosis, failed to advise her of any causal relationship between her condition and her work at National.  Instead, he told her that the cause of sarcoidosis was unknown and that her breathing and sinus problems were secondary to the sarcoidosis.

As noted by the dissenting member of the Appellate Panel, Holmes was entitled to rely upon Dr. Lieberman’s expert medical opinion.  The mere diagnosis of her sarcoidosis condition, without more, does not give rise to a compensable injury under our workers’ compensation law, and Holmes could not simply assume the condition was work related in the absence of expert medical evidence.  See Mauldin, 308 S.C. at 20, 416 S.E.2d at 640 (stating a workers’ compensation claim must be for a “compensable” injury); cf. Hanks v. Blair Mills, Inc., 286 S.C. 378, 335 S.E.2d 91 (Ct. App. 1985) (observing there are “non-compensable causes” that can accelerate or aggravate an occupational illness).  Based on Dr. Lieberman’s statement, a reasonable person would have believed that sarcoidosis is a malady, not unlike cancer, whose occurrence is both unfortunate and unpredictable.[2]

Dr. Lieberman’s medical opinion is consistent with existing medical knowledge, which universally recognizes that sarcoidosis is a rare condition whose etiology is unknown by medical experts, that it can affect any organ in the body, and that its symptoms are highly variable from patient to patient.  See  Booker v. Int’l Rivercenter, 905 So. 2d 498, 502 (La. Ct. App. 2005) (noting a physician’s testimony that sarcoidosis has no known cause); Hatem v. Bryan, 453 S.E.2d 199, 200 (N.C. Ct. App. 1995) (stating the plaintiff “suffered from sarcoidosis, a chronic disease process of unknown cause which may affect any organ or tissue of the body”).

It is also consistent with the fact that Dr. Spandorfer, likewise, was unable to definitively state the origin of Holmes’s sarcoidosis in 2005.  However, Dr. Spandorfer was, in contrast to Dr. Lieberman and Holmes’s prior physicians, able to discern a link between what might have been a dormant underlying condition and Holmes’s employment at National in his report of July 12, 2005.  In addition, July 12, 2005 is the first date Holmes was advised by Dr. Spandorfer that she also suffered from occupationally-induced asthma related to her work at National.

The record as a whole indicates that the variety of complex symptoms Holmes experienced, such as the respiratory problems, lumps, skin lesions, changes in skin pigmentation, joint pain, and swelling of the lower extremities, among others, were all within the wide range of symptoms that can arise with sarcoidosis. At the same time, these symptoms were also indistinguishable from many other maladies.  Merely being aware of her sarcoidosis symptoms would not alert Holmes to the compensability of her injury, especially when her treating physician told her sarcoidosis has no known cause and that her symptoms were secondary to the disease itself.  Moreover, although Holmes commented at one point that her symptoms seemed to temporarily improve when she was away from work, Holmes also testified that her symptoms temporarily improved when she began taking over-the-counter medications, but ultimately, the symptoms persisted, even as she changed employers and work environments.  Consequently, there was no definitive pattern to her condition.

The unique character of sarcoidosis undoubtedly made it more difficult for the medical experts to analyze as compared to conditions that uniformly manifest specific symptoms in a localized area.  The fact that the current state of medical knowledge ascribes no known cause for this condition also proved to be an impediment to Holmes’s physicians relating her sarcoidosis to her employment until it had progressed to the point where the connection was made by Dr. Spandorfer.  Holmes went to a variety of physicians seeking medical treatment for her evolving array of symptoms.  As a layperson, Holmes should not be penalized for, in essence, failing to detect what her own treating physicians had failed to discover prior to 2005.  Cf. Youngblood v. U.S. Silica Co., 130 S.W.3d 461 (Tex. App. 2004) (reversing the grant of summary judgment based on the two-year statute of limitations and finding the fact that the employee continued to visit doctors from 1992 to 1997 was some evidence that he exercised reasonable diligence in ascertaining the cause of his silicosis and the employee did not discover his illness was work related and could not have assumed it was work related prior to the time he was so informed by a doctor in 1997).

Based on the foregoing, I would hold Holmes’s claim regarding her sarcoidosis condition was filed within two years of when she knew or reasonably should have known that she had sustained a compensable injury.  In addition, while the Appellate Panel found Holmes knew of her sarcoidosis diagnosis in 1995, there has been no allegation or finding that Holmes’s occupationally-induced asthma existed at the time her sarcoidosis was diagnosed.  Rather, it subsequently developed as Holmes’s health problems progressed and was diagnosed in 2005.  The Appellate Panel’s discussion regarding the statute of limitations focused only on the timing of Holmes’s sarcoidosis diagnosis and her alleged failure to timely determine the relation of her sarcoidosis to her employment.  The diagnosis of Holmes’s sarcoidosis has no bearing on her later-developed asthma.  Holmes’s claim regarding her asthma was timely asserted within two years of when she knew or reasonably should have known she had a compensable injury in this regard.

The Court observed in Mauldin that statutes of limitation should not be applied mechanically, but in a manner consistent with both their underlying purposes and the need to provide substantial justice to all parties.  Mauldin, 308 S.C. at 21, 416 S.E.2d at 640.  The desire to protect defendants from false or fraudulent claims “must be balanced against a plaintiff’s interest in prosecuting an action and pursuing [her] rights.”  Id.  “Plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed.”  Id.  “The statute of limitations applicable to workers’ compensation claims, like the Workers’ Compensation Act as a whole, should be given liberal construction, and any reasonable doubts should be resolved in favor of coverage.”  Rogers v. Spartanburg Reg’l Med. Ctr., 328 S.C. 415, 418, 491 S.E.2d 708, 710 (Ct. App. 1997).

Allowing Holmes to recover for her injuries is consistent with the underlying purpose and objectives of the statute of limitations.  Holmes’s appeal presents an unusual case of a claimant with a rare condition; there is no allegation of a false or fraudulent claim and National has not been disadvantaged in its ability to evaluate the validity of the claim.  As this Court has previously held, any doubts regarding the statute of limitations should be resolved in favor of coverage.  This principle is particularly relevant in light of the fact that the Appellate Panel was itself divided on the statute of limitations issue.

III.

Having determined Holmes’s claim is not time-barred, I would further hold the unchallenged factual findings of the Appellate Panel as to the compensability of Holmes’s claim and her stipulated compensation rate are the law of the case.  Therefore, I would reverse the decision of the Court of Appeals and remand this matter to the Commission for it to reinstate the order of the single commissioner.

Acting  Justice James E. Moore, concurs.

[1] This Court has corrected the spelling of the employer’s name to “National Service Industries” (rather than “National Services Industries”) in the caption.

[2] “Logically, an employee cannot be expected and certainly cannot be required to institute a claim until he has reliable information that his condition is the result of his employment.”  Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416 (Mo. Ct. App. 1988),overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).  “Just as logically, given that there must be competent and substantial evidence of this link, the claimant is entitled to rely on a physician’s diagnosis of his condition rather than his own impressions.”  Id.

SC Workers’ Compensation – Waiver of Defenses After 150 Days

Feb 3, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case clarifies how long the employer / insurance carrier has to investigate a claim and to raise certain defenses. If not raised properly, a skilled workers’ compensation attorney can fight to declare those defenses waived. Better make sure your attorney is experienced in trying workers’ compensation cases.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

William T. Jervey, Jr., Employee, Respondent,

v.

Martint Environmental, Inc., Employer,

and General Casualty Insurance Company, Carrier, Appellants.

Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge

Opinion No. 4930
Heard October 31, 2011 – Filed January 25, 2012

AFFIRMED AS MODIFIED

E. Ros Huff, Jr., of Irmo, for Appellants.

Andrew Nathan Safran, of Columbia, for Respondent.

SHORT, J.: Martint Environmental, Inc. (Martint) and General Casualty Insurance Company (collectively, Appellants) appeal the circuit court’s order vacating in part and affirming in part the order of the Appellate Panel of the Workers’ Compensation Commission, arguing the court erred in finding: (1) section 42-9-260 of the South Carolina Code is a time bar for raising a defense against compensability; (2) William Jervey could raise both waiver and laches as affirmative defenses; and (3) Jervey suffered from a compensable injury by accident in the course and scope of his employment.  We affirm as modified.

FACTS

On January 23, 2006, Jervey was working for Martint when a pipe he was carrying spilled sulfuric acid on his neck, face, and back.  The next day, Martint began paying Jervey temporary total disability payments and covering his medical bills.^[1]  Jervey subsequently developed post-traumatic stress disorder and began having cervical disc problems.  Thereafter, on June 29, 2007, he filed a Form 50 seeking treatment for his cervical problems and designation of Dr. Donald Johnson as his authorized treating physician.  Martint filed a Form 51 denying Jervey’s requested treatment and that he had sustained a compensable injury.  Jervey then filed a Form 58, pre-hearing brief, asserting in pertinent part that Martint’s claims are “barred by several legal doctrines, including waiver, estoppel and laches.”  Also, Jervey claimed that, despite knowing all the relevant facts, Martint failed to assert its defense for approximately fifteen months, while it paid him weekly compensation and provided him with treatment.

During a pre-hearing conference, the single commissioner took testimony on the issue of compensability, and Jervey’s attorney made a motion asserting Martint could not raise any defenses as to the compensability of the claim because Martint accepted the claim and paid Jervey temporary total disability payments beyond the 150-day time limit established in section 42-9-260 of the South Carolina Code.  Jervey claimed the only issue Martint could litigate was Jervey’s request for treatment for his cervical problems.  The commissioner agreed and ruled Martint could not raise a defense on compensability after 150 days.  At that time, Martint stipulated “the medical evidence to date indicate[d] a cervical problem that the doctors [said] is causally related.”

In his order, the commissioner reviewed section 42-9-260 of the South Carolina Code, and found the language was explicit:

Section 42-9-260 clearly establishes that an Employer/Carrier: (a) “may start temporary disability payments . . . [once] an employee has been out of work due to a work-related injury . . . for eight days”; (b) is afforded a 150-day grace period, during which it may conduct “a good faith investigation” to determine whether any “grounds for denial of the claim” exist; and (c) does not “waive . . . any grounds for good faith denial,” provided the defense is raised within the prescribed period.  This language likewise: (a) limits this grace period to “one hundred fifty days from the date the injury . . . is reported”; and (b) invokes a “waiver of any grounds for good faith denial” in the event payments are continued beyond expiration of this grace period.

(Emphasis in original.)  The commissioner further found Martint did not attempt to disclaim liability for Jervey’s injuries until approximately 450 days after receiving notification of the accident.  Moreover, Martint’s denial stems from the same allegation that was listed on its January 24, 2006 Form 12-A, in which Martint asserted Jervey was asked not to “touch or dismantle the sulfuric acid system.”  Therefore, the commissioner’s order provided Martint must: (a) continue to pay Jervey weekly compensation at the rate of $586.11 until such time as this obligation is relieved by further order of the commission or agreement of the parties; (b) accept financial responsibility for all causally-related medical treatments Jervey has received, including those provided by Dr. Johnson; and (c) authorize the additional medical treatments prescribed by Dr. Johnson and Dr. Roger Deal.

Martint subsequently filed a Form 30, appealing the commissioner’s order on thirty-four grounds.  The Appellate Panel agreed with the commissioner that Jervey was entitled to temporary total disability payments and medical benefits including those provided by Dr. Johnson and Dr. Deal; however, it vacated the commissioner’s ruling that the statute of limitations in section 42-9-260 barred Martint’s defense, and instead found the doctrines of waiver and laches prohibited Martint’s defense.  Jervey filed an appeal with the circuit court, arguing the Appellate Panel erred in vacating the commissioner’s determination that section 42-9-260 prohibited Martint from asserting its compensability defense.  Martint filed its appeal with the circuit court four days later, raising twenty-three points of alleged error, including that the Appellate Panel erred in applying the doctrines of waiver and laches.  Following a hearing, the circuit court issued its order affirming the Appellate Panel’s order in all respects except for the portion that vacated the single commissioner’s legal conclusions concerning the impact of the statute of limitations in section 42-9-260(A).  The court also reinstated the award of compensation and medical benefits and dismissed Martint’s appeal.  This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel of the Workers’ Compensation Commission.  Fredrick v. Wellman, Inc., 385 S.C. 8, 15-16, 682 S.E.2d 516, 519 (Ct. App. 2009); see Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse or modify the Appellate Panel’s decision if the appellant’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.”  S.C. Code Ann. § 1-23-380(5) (Supp. 2010); see Stone v. Traylor Bros., Inc., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).  Our supreme court has defined substantial evidence as evidence that, in viewing the record as a whole, would allow reasonable minds to reach the same conclusion that the Appellate Panel reached.  Lark, 276 S.C. at 135, 276 S.E.2d at 306.  “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”  Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

LAW/ANALYSIS

I.  Statute of Limitations

Martint argues the circuit court erred in finding section 42-9-260 of the South Carolina Code is a time bar for raising a defense against compensability.  We agree.

The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature.  Blackburn v. Daufuskie Island Fire Dist., 382 S.C. 626, 629, 677 S.E.2d 606, 607 (2009).  “In ascertaining legislative intent, ‘a court should not focus on any single section or provision but should consider the language of the statute as a whole.'”  Gov’t Emps. Ins. Co. v. Draine, 389 S.C. 586, 592, 698 S.E.2d 866, 869 (Ct. App. 2010) (quoting Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996)).  “Unless there is something in the statute requiring a different interpretation, the words used in a statute must be given their ordinary meaning.”  S.C. Coastal Conservation League v. S.C. Dep’t of Health and Env’t Control, 390 S.C. 418, 425, 702 S.E.2d 246, 250 (2010).  “When a statute’s terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning.”  Id. at 425-26, 702 S.E.2d at 250.  If two provisions have an irreconcilable conflict, our courts have used the “last legislative expression rule,” which provides “where conflicting provisions exist[], the last in point of time or order of arrangement, prevails.”  Eagle Container Co. v. Cnty. of Newberry, 379 S.C. 564, 572, 666 S.E.2d 892, 896 (2008) (quoting Ramsey v. Cnty. of McCormick, 306 S.C. 393, 397, 412 S.E.2d 408, 410 (1991).  However, the last legislative expression rule “is purely an arbitrary rule of construction and is to be resorted to only when there is clearly an irreconcilable conflict, and all other means of interpretation have been exhausted.”  Id. (quoting Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 54, 26 S.E.2d 22, 24 (1943)).

Section 42-9-260(A) of the South Carolina Code provides “[w]hen an employee has been out of work due to a reported work-related injury or occupational disease for eight days, an employer may start temporary disability payments immediately and may continue these payments for up to one hundred fifty days from the date the injury or disease is reported without waiver of any grounds for good faith denial.”  S.C. Code Ann. § 42-9-260(A) (Supp. 2010) (emphasis added).  Section 42-9-260(B) states that “[o]nce temporary disability payments are commenced, the payments may be terminated or suspended immediately at any time within the one hundred fifty days if: . . . (3) a good faith investigation by the employer reveals grounds for denial of the claim . . . .”  S.C. Code Ann. § 42-9-260(B) (Supp. 2010).  Section 42-9-260(F) provides: “After the one-hundred-fifty-day period has expired, the commission shall provide by regulation the method and procedure by which benefits may be suspended or terminated for any cause, but the regulation must provide for an evidentiary hearing and commission approval prior to termination or suspension . . . .”  S.C. Code Ann. § 42-9-260(F) (Supp. 2010).

Martint argues section 42-9-260(F) provides the Commission with the authority to designate procedures for terminating benefits after the 150-day period “for any cause,” which includes a good faith defense, and the Commission neglected to adopt a procedure.  Although the Commission adopted Regulation 67-506[2] to establish the procedure for terminating disability benefits after the first 150-days after the employer’s notice of the injury, Martint asserts the regulation does not address the procedure for terminating benefits based on a denial of compensability, and the statute’s clear “for any cause” language is plain and unambiguous and “must be interpreted to include a good faith defense on the issue of compensability.”  Thus, Martint contends it can raise the issue of compensability as a good faith defense after the 150-day period has expired.

In Fredrick v. Wellman, Inc., 385 S.C. 8, 682 S.E.2d 516 (Ct. App. 2009), this court addressed the issue.  Fredrick argued that when 150 days from the first report of injury have expired, payments may be terminated or suspended for only those reasons set forth in Regulations 67-505 and -506 and Form 21.  Id. at 18, 682 S.E.2d at 521.  Fredrick asserted Wellman’s fraud defense was not properly before the commissioner because Wellman failed to assert it within 150 days from the date the injury was first reported, and Wellman failed to raise the fraud defense in its Form 21.^[3]  Id. at 17, 682 S.E.2d at 520.  This court disagreed and held that section 42-9-260(F) permits an employer to terminate benefits for any cause after the expiration of the 150 days; thus, Wellman’s fraud defense was properly before the commissioner.  Id. at 19, 682 S.E.2d at 521.  Because Fredrick held section 42-9-260(F) permits an employer to terminate benefits for any cause after the expiration of 150 days, we find Martint is not prohibited from asserting its defense.  Therefore, the Appellate Panel was correct in vacating the single commissioner’s finding that section 42-9-260 is a time bar for raising a defense against compensability.

II.  Affirmative Defenses

Martint argues the circuit court erred in finding Jervey could raise both waiver and laches as affirmative defenses.  We disagree.

Waiver is the “voluntary and intentional relinquishment or abandonment of a known right.”  Strickland v. Strickland, 375 S.C. 76, 85, 650 S.E.2d 465, 470 (2007).  The party claiming waiver must show the other party possessed, at the time, actual or constructive knowledge of his rights or of all the material facts upon which they were dependent.  Janasik v. Fairway Oaks Villas Horizontal Prop. Regime, 307 S.C. 339, 344, 415 S.E.2d 384, 387-88 (1992).  “The doctrine of waiver does not necessarily imply that the party asserting waiver has been misled to his prejudice or into an altered position.”  Id. at 344, 415 S.E.2d at 388.  Laches is an equitable doctrine that our courts have defined as “neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law should have been done.”  Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 432, 673 S.E.2d 448, 456 (2009) (quoting Hallums v. Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988)).  “[T]o establish laches as a defense, a party must show that the complaining party unreasonably delayed its assertion of a right, resulting in prejudice to the party asserting the defense of laches.”  Id.  “[W]hether laches applies in a particular situation is highly fact-specific, so each case must be judged on its own merits.”  Muir v. C.R. Bard, Inc., 336 S.C. 266, 297, 519 S.E.2d 583, 599 (Ct. App. 1999).

Martint asserts Jervey did not amend his Form 50 to raise the defense of waiver and laches, and he did not raise it as an issue during the hearing before the single commissioner.  Therefore, Martint maintains the issue was not before the commissioner and was waived by Jervey.  However, Jervey filed a Form 58, pre-hearing brief, in which he asserted Martint’s claims were barred by several legal doctrines, including waiver, estoppel, and laches.  In Fredrick, this court found a prehearing brief effectively amended a Form 51 Answer, and the prehearing brief provided Fredrick and the Commission with ample notice of the fraud defense.  Fredrick, 385 S.C. at 20, 682 S.E.2d at 522.  Martint did not object to Jervey’s pre-hearing brief at the October 15, 2007 hearing.  Additionally, in its Form 30 appeal to the appellate panel, Martint raised thirty-four issues; however, none of these allege Jervey’s waiver and laches arguments were untimely or improper.  Instead, Martint only argued the single commissioner erred in concluding its conduct satisfied the criteria for waiver and laches.  Therefore, we find Jervey’s defenses of waiver and laches were properly before the single commissioner.

Additionally, we find Martint’s argument that Jervey did not amend his Form 50 to raise the defense of waiver and laches or raise it as an issue during the hearing before the single commissioner is not preserved for our review because it did not raise the argument to the single commissioner or the Appellate Panel.  Pratt v. Morris Roofing, Inc., 353 S.C. 339, 352, 577 S.E.2d 475, 481-82 (Ct. App. 2003) (stating an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the single commissioner or in a request for commission review of the single commissioner’s order to be preserved for appellate review).  Furthermore, we find because Martint knew of its defense the day of the accident, yet it paid and has continued to pay Jervey disability compensation, and it did not assert the defense until at least 450 days after the accident, the evidence supports the Appellate Panel’s finding that Martint’s defense is barred by the doctrine of waiver and laches.[4]

III.  Compensable Injury

Martint argues the circuit court erred in finding Jervey suffered from a compensable injury by accident in the course and scope of his employment because he was working outside the scope of his employment when he “was asked not [to] touch or dismantle the sulfuric acid system,” and he “did not use [the] provided safety gear.”  We need not address this issue because we find the doctrines of waiver and laches prohibit Martint from asserting its compensability defense.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of another issue is dispositive of the appeal).

Conclusion

Accordingly, the circuit court’s order is affirmed as modified, reinstating the Appellate Panel’s finding that section 42-9-260 does not prohibit Martint from asserting its compensability defense.  However, we find Martint’s defense is barred by the doctrine of waiver and laches because Martint knew of its defense the day of the accident, yet it paid and has continued to pay Jervey disability compensation, and it did not assert the defense until at least 450 days after the accident.

AFFIRMED AS MODIFIED.

WILLIAMS and GEATHERS, JJ., concur.

[1]  The circuit court found the compensation payments from Martint to Jervey have continued without interruption since January 24, 2006.

[2]  25A S.C. Code Ann. Regs. 67-506 (Supp. 2010).

[3]  Wellman asserted Fredrick’s concealment of prior back problems vitiated their employment relationship.  Id. at 16, 682 S.E.2d at 519-20.  Here, there is no allegation of fraud.

[4]  From our review of the record, Martint did not assert its defense until it filed a Form 51 on July 27, 2007, which was 510 days after the date of the accident.

SC Workers’ Compensation – Permanent and Total Disability – Vocational Experts

Feb 3, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals decision highlights the importance of proper case preparation and trial experience. Permanent and total disability cases are very complicated and require extensive records review and use of various experts, including treating physicians as well as vocational specialists. A successful ruling gives an injured worker the most money SC law allows. Many times, the outcome turns on which expert witness is more persuasive. Better make sure your attorney has handled these cases and knows what they are doing.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Henry Dinkins, Appellant,

v.

Lowe’s Home Centers, Inc. – Sumter, SC and Specialty Risk Services, LLC, Respondent.

Appeal from Sumter County
George C. James, Jr., Circuit Court Judge

Opinion No. 4926
Heard October 5, 2011 – Filed January 4, 2012

Affirmed

Stephen Benjamin Samuels, of Columbia, for Appellant.

Weston Adams, III, Helen F. Hiser, C. Edward Rawl, Jr., and M. McMullen Taylor, all of Columbia, for Respondents.

Lockemy, J.:  In this worker’s compensation action, Henry Dinkins appeals the circuit court’s decision that there is substantial evidence in the record to support the Appellate Panel of the Worker’s Compensation Commission’s (Appellate Panel) finding he is not entitled to total disability pursuant to section 42-9-10 of the South Carolina Code (1985).  Specifically, Dinkins contends the Appellate Panel erred in (1) finding section 42-9-400 of the South Carolina Code (1985 & Supp. 2005) inapplicable; (2) finding Dinkins is only entitled to compensation under section 42-9-30 of the South Carolina Code (1985); and (3) failing to rule on whether Dinkins’ proof of diligent efforts to secure employment establishes a total loss of earnings under section 42-9-10.  Dinkins also argues the circuit court erred in failing to remand the case with instructions to make specific findings of fact and conclusions of law affirmatively addressing total disability proven by unsuccessful “diligent efforts to secure employment.”  We affirm.

FACTS

Dinkins began working for Lowe’s Home Centers, Inc. (Lowe’s) on April 17, 1999, as a Customer Service Representative and was eventually promoted to Paint and Home Décor Department Manager.  On May 1, 2001, Dinkins suffered the first of three injuries at Lowe’s when he injured his left ankle.  The commissioner found Dinkins sustained a 40% permanent partial disability to the left leg.  Dinkins then injured his right knee at Lowe’s on June 22, 2002, and the commissioner found Dinkins sustained a 30% permanent partial disability to the right leg.  Following the two incidents, Lowe’s reassigned Dinkins to a customer service position to accommodate his physical injuries.

Dinkins injured his back on April 20, 2005, and reported his injury to Lowe’s.  After receiving treatment from Dr. Stacey, an orthopedic surgeon, Dinkins was diagnosed with “L4 radiculopathy.”  On December 5, 2005, Lowe’s released Dinkins from work after Dr. Armsey (Dr. Stacey’s partner) reported Dinkins was restricted from lifting items exceeding 20 pounds.  Dinkins has not been employed since that time.  Dr. Johnson reported Dinkins at maximum medical improvement on March 9, 2007, and stated Dinkins was a good candidate for “long-term anti-inflammatory medications” and was unlikely to need surgery in the future.  However, Dr. Johnson also recommended Dinkins be placed on sedentary to light work with a lifting restriction of 10 pounds on an occasional basis.  Dr. Johnson suggested avoiding repetitive bending and twisting if possible, because if Dinkins did not, his condition would be exacerbated.  After examining Dinkins on June 2, 2006, Dr. Timothy Zgleszewski, stated “I believe that the lower back injury is a separate injury [from Dinkins’ previous ankle and knee injury] . . . . ”

Dinkins met with two vocational experts, Adger Brown and Glen Adams.  Brown stated Dinkins was permanently and totally disabled because of Dinkins’ physical limitations combined with his age and lack of transferable skills.  Brown also stated that “being sixty-three years old, [Dinkins] is already at an incredible deficit for anyone hiring him into any type of meaningful sustained employment.”  In contrast, Adams, after meeting with Dinkins, created a report that detailed all the jobs and fields Dinkins is fit to work with his restrictions.  Adams stated:

A labor market survey was conducted based on the factors outlined in this report in order to identify actual jobs for which Mr. Dinkins qualifies.  A stable labor market was found to exist in his local labor market in the banking, financial and retail industries.  Based on the strength of his prior work history in management positions, as well as the other factors outlined in this report, he is currently employable in his labor market.

Prior to working for Lowe’s, Dinkins was employed in the banking industry, and he stated he could return to work in that industry.  Dinkins conducted a job search in Columbia, Florence, Camden, and Sumter over the course of about three months.  After sending out between twenty-five to thirty applications, he was either refused the job or had not heard back from the employer.  Dinkins admitted he is not applying to any jobs that he could not do.

On January 23, 2008, the single commissioner found Dinkins’ compensable injury was confined to his back; thus, he was limited to the scheduled disability compensation under section 42-9-30.  Further, the commissioner found Ellison v. Frigidaire Home Prods., 360 S.C. 236, 600 S.E.2d 120 (Ct. App. 2004) (Ellison I) was not applicable because Dinkins’ pre-existing ankle and knee injuries did not combine to cause a greater disability.  The commissioner also found even if Ellison I were applicable, Dinkins did not meet his burden of proving a total loss of earning capacity due to his work related injuries.  She awarded Dinkins a 12% permanent partial disability to his back under section 42-9-30.  Dinkins appealed the commissioner’s decision to the Appellate Panel, and the Appellate Panel affirmed the commissioner’s findings, and also found Ellison v. Frigidaire Home Prods., 371 S.C. 159, 638 S.E.2d 664 (2006) (Ellison II) was not applicable.  Dinkins then appealed to the court of common pleas, and the court of common pleas affirmed the Appellate Panel’s decision.

STANDARD OF REVIEW

The Administrative Procedures Act (“APA”) provides the standard for judicial review of workers’ compensation decisions.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).  Under the APA, this court can reverse or modify the decision of the Appellate Panel if the substantial rights of the appellant 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.  S.C. Code Ann. § 1–23–380(5)(d),(e) (Supp. 2010); Transp. Ins. Co. v. South Carolina Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689-90 (2010).

The Appellate Panel is the ultimate fact-finder in workers’ compensation cases.  Jordan v. Kelly Co., 381 S.C. 483, 486, 674 S.E.2d 166, 168 (2009); Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  As a general rule, this court must affirm the findings of fact made by the Appellate Panel if they are supported by substantial evidence.  Pierre, 386 S.C. at 540, 689 S.E.2d at 618.  “Substantial evidence is that evidence which, in considering the record as a whole, would allow reasonable minds to reach the conclusion the [Appellate Panel] reached.”  Hill v. Eagle Motor Lines, 373 S.C. 422, 436, 645 S.E.2d 424, 431 (2007).  “The possibility of drawing two inconsistent conclusions from the evidence does not prevent the [Appellate Panel’s] finding from being supported by substantial evidence.”  Id.

LAW/ANALYSIS

I.  Greater disability pursuant to section 42-9-400

Dinkins contends substantial evidence in the record supports his argument that his back injury in combination with his previous knee and ankle injuries resulted in a greater disability than the back injury alone, pursuant to section 42-9-400.  Specifically, Dinkins argues the Appellate Panel erred in basing its findings on Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 580 S.E.2d 100 (2003), and contends Ellison IIis controlling.  We disagree.

In Wigfall, the claimant’s sole physical injury was a broken left femur stemming from a work-related accident.  Wigfall, 354 S.C. at 102, 580 S.E.2d at 101.  The single commissioner found that while Wigfall’s injury, employment history, age, and educational attainment rendered him totally disabled, the supreme court’s ruling in  Singleton v. Young Lumber Co., 236 S.C. 454, 114 S.E.2d 837 (1960) limited him to an award under the scheduled member statute.  Id. at 102-03, 580 S.E.2d at 101; see Singleton, 236 S.C. at 471, 114 S.E.2d at 845 (“Where the injury is confined to the scheduled member, and there is no impairment of any other part of the body because of such injury, the employee is limited to the scheduled compensation, even though other considerations such as age, lack of training, or other conditions peculiar to the individual, effect a total or partial industrial incapacity.”).  On appeal, the supreme court reaffirmed its ruling in Singleton that an injury to a scheduled member which is the sole cause of the claimant’s disability may be compensated only under the scheduled injury statute.  Wigfall, 354 S.C. at 106-07, 580 S.E.2d at 103.

In Ellison, the claimant was given a 20% permanent impairment rating to his leg after injuring it on the job.  Ellison II, 371 S.C. 159, 161, 638 S.E.2d 664, 665 (2006).  Ellison also had pre-existing physical conditions including hypertension, sleep apnea, prostate cancer, diabetes, and congestive cardiac disease, which, in combination with his workplace injury, rendered him physically unable to return to work after his accident.  Id.  Applying section 42-9-400, the commissioner concluded Ellison was totally disabled from the combined effect of his pre-existing conditions and his workplace injury to his leg.  Id.at 162, 638 S.E.2d at 665.  Section 42-9-400 provided in pertinent part:

(a) If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation and medical benefits provided by this Title; but such employer or his insurance carrier shall be reimbursed from the Second Injury Fund . . . .

(d) As used in this section, “permanent physical impairment” means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.^[1]

S.C. Code Ann. § 42-9-400 (1985 & Supp. 2005).  On appeal, this court found section 42-9-400 merely entitled an employer’s insurance carrier to be reimbursed by the Second Injury Fund; thus, Singleton  should have been applied to the facts.  Ellison II, 371 S.C. at 164, 638 S.E.2d at 666.  Our supreme court reversed this court’s decision, holding Singleton was inapplicable.  Id. at 162-64, 638 S.E.2d at 665-66 (stating Singleton “stands simply for the proposition that impairment involving only a scheduled member is compensated under the scheduled injury statute and not the general disability statute”).  It held that in contrast to Singleton, Ellison claimed total disability from the combined effect of his workplace injury and his pre-existing physical deficiencies.  Id. at 162-63, 638 S.E.2d at 665-66.   The supreme court found “[t]he language of § 42-9-400(a) and (d) indicates the legislature clearly envisioned that a claimant may recover for greater disability than that incurred from a single injury to a particular body part if the combination with any pre-existing condition hinders employment.”  Id.at 164, 638 S.E.2d at 666.

While distinguishable from the current appeal, the recent decision in Bartley v. Allendale Cnty. Sch. Dist., 392 S.C. 300, 709 S.E.2d 619 (2011) is also relevant to our analysis.  In Bartley, our supreme court determined this court arguably did some improper fact finding to make its ruling that the injury at issue did not cause or aggravate Bartley’s other conditions, and therefore, Bartley was not entitled to compensation under section 42-9-400.[2]  Bartley, 392 S.C. at 310-11, 709 S.E.2d at 623-24.   The supreme court then stated, “[I]t appears the Court of Appeals focused on whether Bartley’s 2002 accident caused her other medical conditions or whether it aggravated her pre-existing conditions.”  Id. at 309, 709 S.E.2d at 623.  However, “[t]here is no requirement that the pre-existing condition aggravated the work injury or that the work injury aggravated the pre-existing condition; rather, the question to be considered was whether the combined effects of the condition and the workplace injury resulted in a greater disability than would otherwise have existed.”  Id. at 308, 709 S.E.2d at 623 (citing Ellison II, 371 S.C. at 164, 638 S.E.2d at 666).  The case was remanded to the Appellate Panel because “had [the Appellate Panel] considered the application of the law in Ellison II, [it] would have made additional findings of fact pertinent to this analysis that are missing from the record.”  Id. at 310, 709 S.E.2d at 624; see Ellison II, 371 S.C. 159, 638 S.E.2d 664 (2006).

Here, the commissioner erred in citing Ellison I, 360 S.C. 236, 600 S.E.2d 120 (Ct. App. 2004), which was overturned.  However, the Appellate Panel cited to the controlling case law in Ellison II, 371 S.C. 159, 638 S.E.2d 664 (2006).  The Appellate Panel analyzed the facts in light of Ellison II, and determined that upon the evidence, Ellison II did not apply.  Specifically, the Appellate Panel found:

Based on the testimony and evidence presented, Claimant’s current inability to work, if any, is secondary solely to his back injury.  The knee and ankle injuries he sustained in his previous work-related accidents do not contribute to his disability as defined by § 42-1-10 [sic] in any way; therefore, Claimant’s reliance on Ellison and § 42-1-400(a) [sic] is misplaced.

(citations omitted).  Unlike the Appellate Panel in Bartley, the Appellate Panel here made findings of fact about Dinkins’ previous injuries.  In addition, the order cites a doctor’s report which states the back injury is a “separate and distinct” injury from Dinkins’ ankle and knee injury.  The Appellate Panel found Dinkins’ knee and ankle injuries did not combine with his current back injury to create a greater disability, and therefore he could not establish total disability based upon section 42-9-400.  While the Appellate Panel did not use the preferable language, “combined effects to cause a greater disability,”^[3] it did cite the proper case law.  We believe it viewed the facts appropriately in light of Ellison II, and substantial evidence in the record supports the Appellate Panel’s decision that Dinkins did not have a greater disability as a result of the combined effects of his previous injuries and his current injury.  Accordingly, we affirm the Appellate Panel’s finding.

In view of our determination that Dinkins has not proven he has a greater disability as a result of the combined effects of his injuries, we need not reach the remaining issues relating to loss of earning capacity. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

CONCLUSION

Based on the foregoing reasons, the trial court is

AFFIRMED.

HUFF and PIEPER, JJ., concur.

[1] Section 42-9-400(a) was later amended to refer to a “disability that is substantially greater and is caused by aggravation of the preexisting impairment than that which would have resulted from the subsequent injury alone,” and it has omitted the “combined effects” language.  Act No. 111, Pt. II, § 3, 2007 S.C. Acts 599 (emphasis added). However, this change is applicable only to injuries that occur on or after July 1, 2007.

[2] The Appellate Panel found it could not “stack” Bartley’s previous injuries with her current injuries; thus, it did not make any findings of fact in regards to her previous injuries.  Therefore, our supreme court found this court may have made its own findings of fact in regard to those previous injuries in order to come to its decision.

[3] The Appellate Panel specifically stated “do not contribute to his disability.”

SC Workers’ Compensation – Contested Hearings – Game On

Jan 28, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court decision amply illustrates just how contested workers’ compensation hearings can be. Less experienced attorneys who merely advertise for workers’ compensation cases wrongly believe that such cases are “easy” or “informal.” On the contrary, these cases can quickly become full litigation matters. The only difference between workers’ compensation cases and other civil cases is there is no “closing arguments.” All other elements (interrogatories, requests to produce documents, depositions of both fact and expert witnesses, including treating physicians) are part of the process. A mistake at any level can turn an otherwise winable case into a losing one. Better make sure your attorney is an experienced litigator, preferrably one who does both workers’ compensation and regular civil cases.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Melenia Trotter, Employee, Petitioner,

v.

Trane Coil Facility, Employer, and Phoenix Insurance Company, Carrier, Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Richland County
James E. Lockemy, Circuit Court Judge

Opinion No. 27024
Heard June 22, 2011 – Filed August 15, 2011

REVERSED

Ann McCrowey Mickle, of Mickle & Bass, of Rock Hill, and Stephen Benjamin Samuels, of Samuels Law Firm, L.L.C., of Columbia, for Petitioner.

Rebecca Anne Roberts and Byron P. Roberts, both of Roberts Law Group, L.L.C., of Chapin, for Respondents.

JUSTICE BEATTY:  Melenia Trotter (“Trotter”) was awarded workers’ compensation benefits for a back injury by the South Carolina Workers’ Compensation Commission (“Commission”).  The circuit court affirmed.  The Court of Appeals reversed in part, vacated in part, and remanded, finding the Commission abused its discretion in denying requests made by the employer and its carrier, Trane Coil Facility and Phoenix Insurance Co. (collectively, “Trane”), for a continuance or to hold the record open for the depositions of two witnesses to be taken.  Trotter v. Trane Coil Facility, 384 S.C. 109, 681 S.E.2d 36 (Ct. App. 2009).  This Court granted Trotter’s petition for a writ of certiorari to review the opinion of the Court of Appeals.  We reverse.

I.  FACTS

Trotter was employed by Spherion, a temporary agency, in August 2004.  At that time, she was sent to work for a 90-day trial period with Trane, a manufacturer of industrial air-conditioners in Blythewood, South Carolina.

After completing the probationary period, Trotter was hired by Trane for a permanent position in November 2004.  Trotter worked at “the turb and trim station,” which consisted of using an “air driver” (a screwdriver with a blade) to trim down tubes to the same length, and then “turbulating” the tubes by putting a spring into each tube.  Trotter was on her feet most of the day and had to “push” into the tubes and move her lower body, particularly her hips, back and forth to perform her work.  She spent approximately ninety percent of each workday, from 5:30 a.m. to 4:00 p.m., engaged in this activity.

According to Trotter, she began having spasms and some lower back pain that extended down her legs in December 2004, which she mentioned to her Team Leader, Darryl Cloud, and to Duane DeBoo,^[1] Trane’s Safety Coordinator.  Trotter continued to work with increasing discomfort in December 2004 and January 2005.

On Monday, January 31, 2005, Trotter was “turbulating the coil” when she felt “like something popped in [her] back” and experienced “excruciating pain.”  Trotter stated she reported this incident to Cloud, her Team Leader.

Trotter worked all that week with worsening pain and “really bad” back spasms.  On Friday, February 4, 2005, she reportedly told Cloud and her supervisor, Pat Charleston, that she had hurt her back while turbulating and that she was in pain and needed to have something done.  Trotter stated Charleston advised her that he would get DeBoo to come over and talk to her, but she did not see DeBoo before her shift ended and she went home.

That same Friday, Trotter made an appointment for the following Monday to see Dr. W. Scott James, III, a physician with Carolina Orthopaedic Surgery Associates.  However, on Saturday, February 5th, Trotter had “[t]errible pain,” so she went to the emergency room at Piedmont Medical Center in Rock Hill.

Trotter was seen by Dr. James on Monday, February 7, 2005.  She told him that she had been having pain at work for the past “several months.”  He scheduled an MRI and gave her a doctor’s note to stay off work.  Trotter called Trane’s personnel office and spoke to Carlos Mays, who told her to bring in the doctor’s slip.  She did so and allegedly showed it to her Supervisor, Charleston, who made a copy of it.  Trotter did not return to work after February 4, 2005.

The MRI revealed Trotter had a large, herniated disc at L5-S1 with marked compression of the right S1 nerve root.  Following Dr. James’s recommendation, Trotter underwent surgery on February 21, 2005.^[2]  Dr. James indicated in his notes that Trotter likely had a bad disc in her back that was aggravated by her job change.

Within a week after her surgery, Trotter called DeBoo and left a message regarding her work injury, but he did not return her call.  Trotter called the personnel office and spoke to Adrian Barnhill, Trane’s Human Resources Manager, who arranged a conference call on February 28, 2005 with Barnhill, DeBoo, Charleston, Mays, and Trotter.  Trotter told them that she had had a work-related accident and that the turbulator had caused her to suffer a back injury.  Trotter had never filed a workers’ compensation claim before, so she asked them what she needed to do.  They asked her to submit a written statement providing details of the accident, which she did on April 14, 2005.

On May 11, 2005, Trotter filed a Form 50 alleging an injury by accident to her back. Trane denied the claim, maintaining it did not receive notice of the injury until after Trotter’s surgery and that there was insufficient proof of a work-related injury.

A hearing was held on September 20, 2005 before a single commissioner.^[3]  By order filed May 5, 2006, the commissioner found Trotter had established a compensable claim for her back and that Trane was responsible for all causally-related medical treatment, both past and future as directed by Dr. James, and “temporary total benefits from Mrs. Trotter’s last day of work and continuing.”

The commissioner noted that she had denied Trane’s motions for a continuance or to leave the record open in order to take the depositions of Dr. James and Charleston and to add Spherion as a party.  The commissioner stated Trane had the opportunity to depose Dr. James prior to the hearing, but it chose not to do so at that time for strategic reasons.  Further, Charleston was scheduled to appear at the hearing, but he became incapacitated suddenly due to illness.  She twice granted motions to hold the record open for Charleston’s deposition to be taken, but no deposition was ever scheduled due to Charleston’s continuing incapacity, so she closed the record.  Finally, as to adding Spherion as a defendant, the commissioner found Trotter was employed with Trane, not Spherion, at the time of her injury.

An Appellate Panel of the Commission unanimously upheld the commissioner’s order and adopted the findings of fact and conclusions of law contained therein in full.  The circuit court affirmed.

Trane appealed to the Court of Appeals, which reversed in part, vacated in part, and remanded.  Trotter v. Trane Coil Facility, 384 S.C. 109, 681 S.E.2d 36 (Ct. App. 2009).  The Court of Appeals found the Commission abused its discretion in denying Trane’s motions for a continuance or to hold the record open for the depositions of Dr. James and Charleston to be taken.  Id. at 118, 681 S.E.2d at 41.  It found Trane had exercised due diligence to obtain the depositions and the testimony was necessary to the case. Id. at 117-19, 681 S.E.2d at 41.  The Court of Appeals vacated the remainder of the circuit court’s order and remanded “all issues” to the Commission for reconsideration following the taking of the additional testimony.  Id. at 119, 681 S.E.2d at 42.  This Court has granted Trotter’s petition for a writ of certiorari.

II.  STANDARD OF REVIEW

The Administrative Procedures Act (APA) establishes the standard for judicial review of workers’ compensation decisions.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 689 S.E.2d 615 (2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).  Under the APA, this Court can reverse or modify the decision of the Commission where the substantial rights of the appellant 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 considering the record as a whole.  Transp. Ins. Co. v. South Carolina Second Injury Fund, 389 S.C. 422, 699 S.E.2d 687 (2010); Pierre, 386 S.C. at 540, 689 S.E.2d at 618.

III.  LAW/ANALYSIS

A.  Requests for Continuance & to Leave Record Open

On appeal, Trotter contends the Court of Appeals erred in finding the denial of Trane’s requests for a continuance or to leave the record open to depose Pat Charleston and Dr. James constituted an abuse of discretion.

A commissioner has the authority to postpone a scheduled hearing in a workers’ compensation matter for “good cause,” which includes such reasons as illness and the need for additional discovery.  S.C. Code Ann. Regs. 67-613(B) (Supp. 2010); see also id.67-215(A)(5) (motions).

The granting or refusal of a request for a continuance rests in the sound discretion of the hearing commissioner, whose ruling will not be disturbed unless a clear abuse of discretion is shown.  Gurley v. Mills Mill, 225 S.C. 46, 80 S.E.2d 745 (1954); see alsoWilliams v. Bordon’s, Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980) (“It has long been the rule in this State that motions for a continuance are addressed to the sound discretion of the trial judge, and his ruling will not be upset unless it clearly appears that there was an abuse of discretion to the prejudice of appellant.”).

For appellate purposes, an abuse of discretion occurs where the ruling is based on an error of law or, where the ruling is grounded upon factual findings, is without evidentiary support.  Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 681 S.E.2d 885 (2009); Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000); Bartlett v. Rachels, 375 S.C. 348, 652 S.E.2d 432 (Ct. App. 2007);Burroughs v. Worsham, 352 S.C. 382, 574 S.E.2d 218 (Ct. App. 2002).

“Of necessity it must be left to the commission to determine whether or not a case shall proceed to trial or be continued.”  Gurley, 225 S.C. at 51-52, 80 S.E.2d at 747.  Where a party is not prejudiced by the denial of a motion for a continuance, reversal is not required.  Wright v. Hiester Constr. Co., 389 S.C. 504, 698 S.E.2d 822 (Ct. App. 2010).

(1)  Pat Charleston

As to Charleston, he was supposed to testify at the September 20th hearing, and his unavailability was sudden.  He was hospitalized on the weekend before the hearing and had surgery the day of the hearing.  The commissioner granted Trane’s request to hold the record open for 14 days from the hearing date and, when Charleston was still incapacitated at the end of that time, the commissioner granted Trane’s October 4, 2005 request for a two-week extension and agreed to hold the record open until October 20, 2005.[4]  No deposition was ever scheduled, and the commissioner closed the record on October 20, 2005.  Based on everything in the record, we find the commissioner did not commit a clear abuse of discretion in closing the record.

We agree with Trane that it was not “at fault” in failing to obtain Charleston’s deposition, as Charleston was ill.  However, the Court of Appeals specifically acknowledged that “the exact date on which Charleston would become available for a deposition was unknown[.]”  Trotter, 384 S.C. at 117, 681 S.E.2d at 41.  The only medical information submitted to the commissioner by Trane at that time came from Charleston’s treating physician, who indicated Charleston was still hospitalized, that he was unable to participate in a deposition, and that his prognosis was “poor.”  Charleston was suffering from a life-threatening illness (cancer) with no certain recovery date.  After a month, during which time no deposition was scheduled and no update had been received from Trane, the commissioner closed the record.

Although the Court of Appeals states Trane did not ask the commissioner to leave the record open “indefinitely,” that is, in effect, what is being urged on appeal as there is no indication in the record that Charleston would have been available for a deposition at any time prior to the issuance of the commissioner’s order in May 2006.  Trane did maintain at the appeal before the circuit court that Charleston was then well enough to provide a deposition, but that was in 2007, well after the 2005 hearing in this matter and the issuance of the commissioner’s order in 2006.  To further delay the resolution of Trotter’s claim due to the continuing illness of a witness, however unfortunate the circumstances, would not serve the interests of justice, and was a factor necessarily considered by the commissioner in making her decision to close the record.

Moreover, Trane has shown no prejudice on appeal.  Charleston’s e-mail of February 28, 2005 to DeBoo was admitted into evidence.  The e-mail set forth the essence of Charleston’s expected testimony, i.e., that Trotter reported a back injury to him on Friday, February 4, 2005, but she did not report it as being work-related.  Charleston further stated in his e-mail that Trotter went home on Friday, February 4th, and the next time she called, Trotter reported that she had undergone surgery and would be out of work for a few months.  Thus, Charleston’s account of events was in the record for consideration by the commissioner, and Trane has not shown any other material information that Charleston would have been able to contribute.^[5]  No error of law has been alleged or shown, and the commissioner’s factual findings in this regard are fully supported by the record.

(2)  Dr. James

As for Dr. James, we agree with Trotter that the Court of Appeals mischaracterized the evidence when it stated Trane “sought to depose Dr. James prior to the hearing, but due to scheduling difficulties, the deposition was scheduled for a date after the hearing.” Trotter, 384 S.C. at 118-19, 681 S.E.2d at 41 (emphasis added).  Upon reviewing the record, we find there is evidentiary support for the commissioner’s finding that Trane had the opportunity to depose Dr. James on the agreed-upon date of September 7, 2005; however, it chose to cancel the deposition for strategic reasons.

On August 5, 2005, the Commission sent all parties a “Notice of Hearing” advising them that the hearing on Trotter’s claim would be held on September 20, 2005.  The parties initially scheduled the depositions of both Trotter and Dr. James for August 23, 2005, but when other, unrelated hearings arose for that date, the parties agreed to take both depositions on September 7, 2005.  On August 11, 2005, Trane formally noticed the depositions of both Trotter and Dr. James for the agreed-upon date of September 7th.  Both Trotter and Dr. James confirmed their availability.

Subsequently, on August 29, 2005, Trane told Trotter’s counsel that it wanted to postpone Dr. James’s deposition so it could have the transcript of Trotter’s deposition in hand before deposing Dr. James.  Trotter’s counsel opposed the rescheduling, stating she did not believe this was a legitimate reason to postpone the proceedings.  Counsel stated that Dr. James would be available on September 7th unless the Commission ordered otherwise.

Trane filed a motion for a continuance with the Commission on August 31, 2005.  On September 1, 2005, before a ruling had been made on the motion, Trane sent Trotter’s counsel a letter informing her that it was changing Dr. James’s deposition date from September 7th to September 14th.  Trane apparently contacted Dr. James’s office directly and reset the date without consulting Trotter’s counsel.  Trotter’s counsel again opposed the rescheduling, stating she already had three other depositions set for September 14th. Therefore, she planned to remain available for the deposition to proceed on September 7th as previously agreed.

On September 7th, Trane took Trotter’s deposition as noticed.  Dr. James was available, but Trane cancelled his deposition and chose not to depose him at that time.  The commissioner thereafter denied Trane’s motion for a continuance of the hearing, finding Trane had the opportunity to depose Dr. James, but had elected not to proceed on the agreed-upon date of September 7th for strategic reasons.  Trane’s motion to hold the record open for Dr. James’s deposition to be taken on a date after the hearing was likewise denied.

We conclude the commissioner did not abuse her discretion in denying Trane’s motions for a continuance or to hold the record open for the taking of Dr. James’s deposition.  Trane could have attempted to schedule the depositions sequentially in the beginning in order to achieve its goal of having the transcript of Trotter’s deposition before deposing Dr. James.  However, once all parties had consented to taking the depositions on September 7th and Trane had formally noticed the depositions for that date, its options became more limited.  Contrary to Trane’s assertion, it does not have an unfettered right to postpone the hearing simply to implement a better strategy for itself.  Trane assumed the risk that its motion would be denied, which was not prudent since a continuance is not a matter of right, but of discretion.  See 17 C.J.S. Continuances § 4 (2011) (observing continuances are not favored and “[a] party has no absolute right to a continuance as a matter of law” (footnote omitted)).

In addition, Trane has not demonstrated any prejudice.  Dr. James’s medical notes were submitted to the commissioner and considered as part of the record, and on appeal Trane has shown no material information that Dr. James would have provided that is not already included in the record.  Dr. James’s notes fully address his diagnosis and treatment of Trotter’s medical condition, and he specifically conceded in his notes that he had no direct knowledge of the circumstances surrounding Trotter’s injury.  Consequently, we hold the commissioner did not abuse her discretion in denying the requests for a continuance or to hold the record open for the deposition of Dr. James to be taken.

Lastly, we discern nothing “inconsistent” in the commissioner’s rulings to initially leave the record open for the deposition of Charleston to be taken, but not Dr. James, as found by the Court of Appeals.  Trotter, 384 S.C. at 119 n. 2, 681 S.E.2d at 42 n.2.  Trane’s request pertaining to Charleston was based on medical necessity and arose suddenly, and the request as to Dr. James was based on Trane’s desire to obtain a strategic advantage.  The circumstances were not similar and need not have been treated in the same manner by the commissioner.

A tribunal necessarily exercises wide discretion in managing a case, and decisions denying a request for a continuance are “rarely” overturned.  Morris v. State, 371 S.C. 278, 283, 639 S.E.2d 53, 56 (2006) (citing State v. Lytchfield, 230 S.C. 405, 95 S.E.2d 857 (1957)); M & M Group, Inc. v. Holmes, 379 S.C. 468, 475, 666 S.E.2d 262, 265 (Ct. App. 2008).  “Every reasonable presumption in favor of a proper exercise of the trial court’s discretion will be made.”  17 C.J.S. Continuances § 5 (2011).  Based on the foregoing, we reverse the decision of the Court of Appeals and reinstate the order of the Commission, which had adopted the single commissioner’s findings and conclusions in full.

B.  Scrivener’s Error Regarding Date of Accident

Trotter next contends the Court of Appeals repeated a scrivener’s error made by the commissioner regarding the date of the accident and asks this Court to correct the error or to grant her leave to petition the Commission for correction of the date.

In her order, the commissioner stated in her “Findings of Fact” that (1) Trotter first experienced back pain in December 2004, (2) Trotter felt a “pop” in her back and had “excruciating pain” while “turbulating” at work on January 31, 2005, and (3) Trotter’s injury occurred “in 2005.”  All of these findings are supported by the evidence.

Trotter points out, however, that in the “Conclusions of Law” portion of her order, the commissioner incorrectly states:  “That on or about December 31, 2004 Mrs. Trotter felt a pop in her back while working.”  Trotter asserts the December 31, 2004 date is incorrect as all parties concede Trotter was not even working that day, so it is obviously a scrivener’s error.

The Court of Appeals stated in its recitation of the facts that Trotter felt a “pop” in her back on January 31, 2005 while she was working.  Trotter, 384 S.C. at 112, 681 S.E.2d at 38.  It later quoted a passage from the commissioner’s order that contained the December 31, 2004 date that Trotter contends is a scrivener’s error.  Id. at 115, 681 S.E.2d at 39-40.

In response, Trane contends the issue whether the December 31, 2004 reference is a scrivener’s error is not preserved as Trotter did not attempt to resolve this question at the Commission or in the circuit court.  Trane further argues the Court of Appeals noted the inconsistencies in the dates in its opinion.  Trane states Trotter cannot now argue that the inconsistency was merely a scrivener’s error, and it “requests that this date, along with the date[s] of January 31, 2005 and February 4, 2005, [the date on the Form 50] remain in the record to be resolved on remand.”

Contrary to Trane’s assertion, the Court of Appeals did not discuss the discrepancies in the commissioner’s order.  Trotter did raise the issue in her petition for rehearing to the Court of Appeals, but rehearing was denied.  In addition, we find Trotter’s request is not barred by principles of error preservation.  Cf. Rule 60(a), SCRCP (stating no explicit time limit for the correction of clerical errors).

Trane acknowledged during oral argument that the commissioner’s order also contains a second reference to the December 31, 2004 date in the “Conclusions of Law,” wherein she stated Trane’s workers’ compensation carrier “shall reimburse Mrs. Trotter’s private insurance carrier for all causally related medical treatment incurred since the accident date of December 31, 2004.”  Because all parties concede that Trotter was not working on December 31, 2004 and since linking the date for reimbursing medical expenses to this 2004 date could cause confusion, we grant Trotter’s request that this Court correct what are clearly scrivener’s errors.  We additionally direct the Commission to correct its records to change the December 31, 2004 references to January 31, 2005.

IV.  CONCLUSION

We conclude the Court of Appeals erred in finding the Commission abused its discretion in denying Trane’s motions for a continuance or to keep the record open for the depositions of Charleston and Dr. James to be taken.  Consequently, we reverse the opinion of the Court of Appeals and reinstate the order of the Commission.^[6]  However, we grant Trotter’s request to correct the scrivener’s errors regarding the date of Trotter’s accident and additionally direct the Commission to correct its records to reflect this change.

REVERSED.

TOAL, C.J., PLEICONES, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.

[1]  Several versions of DeBoo’s name appear in the decisions of this case, but the spelling above is supported by the record.

[2]  Dr. James’s medical notes of April 22, 2005 indicate that due to her significant pain and the fact there could be a delay in obtaining approval of a workers’ compensation claim, he discussed with Trotter the option of going under her regular insurance, but told her that it was her decision and he would be willing to treat her, either way.  Trotter decided to proceed under her regular insurance rather than delay her surgery.

[3]  DeBoo, Charleston, Cloud, and Mays were not present at the hearing.  Trane had terminated Cloud for misconduct, including not following procedures, not showing up for work, and taking part in inappropriate conversations, and his whereabouts were unknown.  Charleston was hospitalized and scheduled to have surgery the day of the hearing.  Barnhill  was the only Trane employee to appear and testify for the employer.  No explanation was given for Trane’s failure to call DeBoo and Mays as witnesses.

[4]  Trane contends it was not notified of the second extension until the date the extension period expired.  However, the question of notice was not addressed by the Court of Appeals and, thus, is not properly before this Court.

[5]  Trane need not have relied only upon Charleston regarding notice.  For example, Trotter testified that she had called the personnel office and spoke to Mays about her work injury prior to her surgery, but we note Trane did not call Mays as a witness to refute this testimony.  Additionally, Trotter and Trane note in their briefs that Charleston is now deceased.  Thus, we find granting an order of remand for his testimony would serve no purpose.

[6]  Based on our decision, we need not address Trotter’s remaining issue, in which she argued the Court of Appeals erred in vacating the remainder of the circuit court’s order and remanding all issues to the Commission.

SC Workers’ Compensation – Permanent and Total Disability – SSDI Offset

Jan 28, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This very important recent SC Supreme Court decision finally settles the question of whether the Workers’ Compensation Commission has the authority to order Social Security Disability Income offset language. Previously, such language was only put in Clincher settlement agreements. Without such offset language, a lump sum award of money might actually harm an injured worker when they applied for disability. Under this case, the Commission can now order offset which allows a claimant to receive a lump sum payment but, as a matter of legal fiction, “spread it out” over the course of his/her expected lifetime. In this way, the claimant gets the money now, but the practical effect is that their Social Security disability award is not affected (i.e. lowered). This provision highlights the  interplay between workers’ compensation claims and other areas of the law (third-party actions, unauthorized medical care liens, SSDI, etc.) Better make sure your attorney understands these issues and how they relate to one another.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Allie James, Claimant, Appellant,

v.

Anne’s Inc., Employer, and Villanova Insurance Company, in liquidation through the South Carolina Property & Casualty Insurance Guaranty Association, Carrier, Respondents.

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Opinion No.  26762
Re-Heard June 24, 2010 – Re-Filed October 25, 2010

REVERSED AND REMANDED

Jody Vann McKnight, of the Reisen Law Firm, of Charleston, for Appellant.

Mark D. Cauthen, T. Jeff Goodwyn, Jr., and Peter P. Leventis, IV, all of McKay, Cauthen, Settana & Stubley, of Columbia, for Respondents.

Andrew Nathan Safran, of Columbia, Ronald J. Jebaily and Suzanne H. Jebaily, both of the Jebaily Law Firm, of Florence, and Stephen B. Samuels, of Columbia, all for Amicus Curiae South Carolina Injured Workers’ Advocates; William Hughes Nicholson, III, of Nicholson & Anderson, of Greenwood, for Amicus Curiae South Carolina Association for Justice; Susan Berkowitz and Stephen Suggs, both of the South Carolina Appleseed Legal Justice Center, of Columbia, for Amicus Curiae South Carolina Appleseed Legal Justice Center; and John S. Nichols and Blake A. Hewitt, both of Bluestein, Nichols & Thompson, of Columbia, for the three foregoing Amici; and Samuel F. Painter, of Nexsen Pruet, of Columbia, for Amicus Curiae South Carolina Self-Insurers Association, Inc.

JUSTICE BEATTY:  The South Carolina Workers’ Compensation Commission found Allie James (“James”) was totally and permanently disabled from a work accident and that she was entitled to a lump sum award of benefits.  The Commission denied James’s request to include language in the order prorating the lump sum award over her life expectancy after her employer and its carrier (“Respondents”) objected.  The circuit court affirmed.  James appealed, arguing the Commission has the authority to include language in the order prorating the lump sum award over her life expectancy and should have done so.  We affirmed the circuit court in James v. Anne’s Inc., 386 S.C. 326, 688 S.E.2d 562 (2010).  Subsequently, we granted James’s petition for rehearing.[1]  We now withdraw that opinion and substitute the current opinion reversing the circuit court’s order and remanding the matter in accordance with this decision.

I.  FACTS

On May 10, 2002, James sustained injuries to her back, neck, and head when she slipped and fell down some stairs while working at Anne’s Dress Shop in Charleston County. James worked for this employer for approximately twenty years before being terminated in 2003.

James sought workers’ compensation benefits for her injuries.  In 2005, the hearing commissioner found James was totally and permanently disabled as a result of the accident and that she was entitled to 500 weeks of compensation benefits, with a credit allowed for the weeks of compensation already paid.  The hearing commissioner further found it was appropriate for the award to be made in a lump sum.

The hearing commissioner denied James’s request to include language in the order prorating the lump sum award over her life expectancy using the life expectancy table provided by section 19-1-150 of the South Carolina Code[2] after Respondents objected.  The hearing commissioner concluded she did not have the authority to include proration language in the order in the absence of consent from Respondents.

James sought review from the full Commission.  In a two-to-one decision, the Commission upheld the hearing commissioner.  The dissenting commissioner found the Commission does have the authority to include proration language in an order, but that there was no error in failing to include such language in the current case.

James appealed to the circuit court, which affirmed the Commission in a form order.  James moved for reconsideration, which the circuit court denied in a formal order filed November 15, 2006.

James appealed to this Court, which affirmed in a split decision.   James v. Anne’s Inc., 386 S.C. 326, 688 S.E.2d 562 (2010).  The majority held that, without an express grant of authority from the South Carolina General Assembly, the Commission did not have the authority to include language prorating a lump sum award over a claimant’s life expectancy without the consent of all parties.  The dissent found that authority to include proration language existed by virtue of the statute conferring a general grant of authority to the Commission to decide all questions arising under the act, citing S.C. Code Ann. § 42-3-180 (1985).

II.  LAW/ANALYSIS

James asserts the circuit court erred in holding the Commission lacks the authority to include language in workers’ compensation orders prorating a lump sum award over a claimant’s life expectancy in the absence of consent from all parties, and in refusing to include such language in her case.  We agree.

(A) Standard of Review

An appellate court has the power upon review to reverse or modify a decision of an administrative agency if the findings and conclusions of the agency are (1) affected by an error of law, (2) clearly erroneous in view of the reliable and substantial evidence on the whole record, or (3) arbitrary or capricious or characterized by abuse of discretion or a clearly unwarranted exercise of discretion.  Gray v. Club Group, Ltd., 339 S.C. 173, 182, 528 S.E.2d 435, 440 (Ct. App. 2000).

(B) Justiciability

As an initial matter, we note the three amici participating in the oral argument of this case have filed a joint brief regarding the merits of the appeal and asserting as a threshold issue that this matter is not justiciable.  The amici specifically assert Respondents lack standing because they cannot show any injury from allocating the lump sum award as it is merely a mathematical calculation that will have no effect on their liability for compensation.  We conclude the amici’s allegation regarding justiciability, and more particularly standing, is not properly before the Court in the current procedural posture.

“Before any action can be maintained, there must exist a justiciable controversy.”  Byrd v. Irmo High Sch., 321 S.C. 426, 430, 468 S.E.2d 861, 864 (1996).  “A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.”  Pee Dee Elec. Coop. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983).  Justiciability encompasses several doctrines, including ripeness, mootness, and standing.  Jackson v. State, 331 S.C. 486, 489 S.E.2d 915 (1997).

Rule 213 of the South Carolina Appellate Court Rules, governing Amicus Curiae Briefs, states an amicus brief is limited to the issues raised by the parties:  “The brief shall be limited to argument of the issues on appeal as presented by the parties and shall comply with the requirements of Rules 208(b) and 211.”  Rule 213, SCACR.

Although James did argue that proration would not have any effect upon Respondents because it would not change the actual amount of the monetary award, it was in the context of responding to Respondents’ argument that proration over a claimant’s lifetime was not authorized because our workers’ compensation statutes limit a claimant to a maximum of 500 weeks of compensation in most instances.  Thus, justiciability and standing were not raised by the parties.

This Court has the inherent authority to consider justiciability.  However, when a party belatedly attempts to raise the issue of standing, our courts have applied error preservation principles and held that the matter was not preserved for review where the trial court was not given an opportunity to first rule on the issue.[3]

In the current appeal, it is not a party, but the amici who are attempting to belatedly raise standing, but we find they are similarly precluded from asserting the issue on error preservation grounds because the amici can argue only the issues that were raised by the parties.  See Rule 213, SCACR.

(C) Social Security Offset

In this case, James sought a proration of her lump sum award using the life expectancy table found at S.C. Code Ann. § 19-1-150.  As noted by the circuit court, James’s “concern is that her Social Security Disability benefits will be offset by the workers’ compensation benefits she receives.  [James] argues that the proration language is required to maximize her workers’ compensation award . . . .”

Under federal law, when a person is deemed disabled and is entitled to monthly disability payments under the Social Security Act, the disability payments must be reduced when the combined amount of the person’s monthly Social Security disability payments and any monthly workers’ compensation benefits exceeds eighty percent of the person’s pre-disability earnings.  See 42 U.S.C.A. § 424a(a) (2003) (providing for the reduction of disability benefits).  When the workers’ compensation benefits are “payable on other than a monthly basis (excluding a benefit payable as a lump sum except to the extent that it is a commutation of, or a substitute for, periodic payments), the reduction under this section shall be made . . . in such amounts as the Commissioner of Social Security finds will approximate as nearly as practicable the reduction prescribed by subsection (a) of this section.”  Id. § 424a(b) (emphasis added).  Thus, lump sum awards generally necessitate a reduction in Social Security disability benefits in instances where they result from a commutation of periodic payments.

The Social Security Administration does not apply a reduction or an offset, however, where a state has enacted a reduction of their workers’ compensation benefits in these circumstances by February 18, 1981.  This reduction (by the individual states) is known as a “reverse-offset” provision.  Tommy W. Rogers & Willie L. Rose, Workers’ Compensation and Public Disability Benefits Offset from Social Security Disability Benefits, 29 S.U. L. Rev. 57, 60 (2001).

South Carolina did not legislatively enact a reverse-offset provision.  Grady L. Beard et al., The Law of Workers’ Compensation Insurance in South Carolina, 567 (5th ed. 2008); see also 70B Am. Jur. 2d Social Security and Medicare § 1490 (2000) (listing states that the Social Security Administration has recognized as having met the legal criteria for reverse-offset plans; South Carolina is not included in this list).

In order to minimize the reduction of her Social Security benefits, James seeks to prorate her lump sum, workers’ compensation award for a  permanent disability over her lifetime using the life expectancy table set forth in section 19-1-150.  James asserts the Social Security Administration expressly accepts the monthly amount derived from using a life expectancy table as one of the bases for calculating the offset to be made to Social Security benefits.

The Social Security Administration will use the prorated time frame stated in an order awarding a lump sum benefit if a time frame is provided; otherwise, it will use an alternative basis for this computation:

According to SSA policy, a lump sum award of workers’ compensation benefits . . . will be prorated at an established weekly rate.  The priority for establishing a weekly rate of payment is as follows:

(1) the rate specified in the lump sum award, including a rate based on life expectancy;

(2) the periodic rate paid prior to the lump sum award if no rate was specified in the lump sum award; or

(3) the state workers’ compensation maximum rate in effect on the date of injury, which is the periodic rate that, in almost every case, would have been payable had periodic payments been made instead of a lump sum, if a workers’ compensation claim is involved and if no rate was specified in the lump sum award and no prior periodic payments had been made.

2A Soc. Sec. Law & Prac. § 26:72 (2006) (footnotes omitted); see also United States Dep’t of Health & Human Servs., 979 F.2d 1082, 1084 (5th Cir. 1992) (noting the Social Security Program Operations Manual specifically sets forth this method for prorating lump sum awards).

(D) Authority of the Commission

In the current appeal, the circuit court concluded that it was “constrained to agree with the decision of the Commission that no authority exists in our Workers’ Compensation laws for allocation of a lump sum award over the claimant’s life expectancy in the absence of consent of the parties.”

(1) Utica-Mohawk Mills v. Orr

James initially cited Utica-Mohawk Mills v. Orr, 227 S.C. 226, 87 S.E.2d 589 (1955), in addition to the general authority of the Commission under statutory law, for support of the Commission’s use of proration language.  Although Utica-Mohawk Mills is often cited in the Commission’s orders along with statutory law when prorating lump sum awards, the circuit court concluded Utica-Mohawk Mills is not applicable here because that case involves “construing a permanent partial disability award of the Commission.”  The circuit court stated this case essentially stands for the proposition that, “in the absence of the consent of the parties” the Commission and the Courts are without authority to “increase the amount of the weekly installments above the sum [allowed by law] or [to] reduce the length of the statutory period.”

Utica-Mohawk Mills interpreted a statute concerning partial disability and held that the weekly compensation (not to exceed 300 weeks) for a claimant who sustained a thirty percent permanent disability should be calculated by taking a percentage of the difference between the average weekly wages he was earning before the injury and the average weekly wages that the employee was able to earn after the injury.  Id. at 230, 87 S.E.2d at 591.

As the parties concede on appeal, although the Commission, the Social Security Administration, and the courts have referred to theUtica-Mohawk Mills case in this context, it does not actually address the lifetime proration issue presently before us.  Further, reliance on this case is misplaced because Utica-Mohawk Mills was issued in 1955, but the first offset provision in the Social Security Act was not added until 1956, which “conclusively shows that Utica-Mohawk’s authority for a reduction in workers’ compensation benefits before social security disability insurance benefits are reduced is unfounded.”  Grady L. Beard et al., The Law of Workers’ Compensation Insurance in South Carolina, 568 (5th ed. 2008).  “Nonetheless, due to its history of accepting the priority of workers’ compensation reductions under South Carolina law, the Social Security Administration accepts this case as authority that workers’ compensation benefits can be reduced to maximize a claimant’s entitlement to Social Security disability insurance benefits.”  Id.

For the reasons noted above, we agree with the circuit court that the Utica-Mohawk Mills case has no application here.  However, we turn now to consideration of the Commission’s authority under statutory law.

(2) Statutory Authority

Section 42-3-180 of the South Carolina Code confers a general grant of authority on the Commission to decide all questions arising under the Workers’ Compensation Act:  “All questions arising under this Title, if not settled by agreement of the parties interested therein with the approval of the Commission, shall be determined by the Commission, except as otherwise provided in this Title.”  S.C. Code Ann. § 42-3-180 (1985) (emphasis added).

The circuit court found section 42-3-180 did not specifically address the Commission’s authority to allocate lump sum awards over the employee’s life expectancy.  The circuit court further found that, because “workers’ compensation statutes provide an exclusive compensatory system in derogation of common law rights, we must strictly construe such statutes, leaving it to the legislature to amend and define any ambiguities,” citing Cox v. BellSouth Telecommunications, 356 S.C. 468, 472, 589 S.E.2d 766, 768 (Ct. App. 2003).

In Cox, the Court of Appeals held that the workers’ compensation statute prohibiting total lump sum awards in lifetime benefits cases should be strictly construed and not expanded to prohibit partial lump sum awards in lifetime benefits cases.  The court stated, as a matter of first impression, that the Commission erred as a matter of law in ruling that it was not empowered to award a partial lump sum.  Id. at 473, 589 S.E.2d at 769.  The court explained that “[p]ermitting partial lump sum payments provides the [C]ommission needed flexibility in lifetime benefits cases, flexibility it regularly exercises with respect to all other compensation awards, to ensure the best interests of the injured worker are protected.”  Id. at 472-73, 589 S.E.2d at 768-69 (emphasis added).

Cox involved the strict construction of a statute prohibiting certain awards.  In contrast, there is nothing in the Act that prohibits, either expressly or impliedly, the proration language at issue here.  Cf. Geathers v. 3V, Inc., 371 S.C. 570, 641 S.E.2d 29 (2007) (finding where South Carolina had not  adopted the last injurious exposure rule, but there was both statutory and case law that favored adoption of this rule rather than an apportionment rule, South Carolina would adopt the last injurious exposure rule; thus, the Commission erred in using the apportionment rule to apportion liability between two carriers when an employee is injured after working for successive employers).

Cox confirms that the Commission regularly exercises its flexibility in making compensation awards to ensure the best interests of the workers are protected to the extent the award is not otherwise prohibited by the Workers’ Compensation Act.  This is consistent with the general rule that workers’ compensation law is to be liberally construed in favor of coverage in order to serve the beneficent purpose of the Act; only exceptions and restrictions on coverage are to be strictly construed.  See Peay v. U.S. Silica Co., 313 S.C. 91, 94, 437 S.E.2d 64, 65 (1993) (“[W]orkers’ compensation statutes are construed liberally in favor of coverage.  It follows that any exception to workers’ compensation coverage must be narrowly construed.” (internal citation omitted)); Cross v. Concrete Materials, 236 S.C. 440, 114 S.E.2d 828 (1960) (stating workers’ compensation law will be construed liberally to effect its beneficent purpose);Olmstead v. Shakespeare, 348 S.C. 436, 559 S.E.2d 370 (Ct. App. 2002) (noting the law is liberally construed to apply coverage, while exceptions are strictly construed).  Therefore, Cox does not require the strict construction of the Act’s provisions in this case.

Respondents argue the proration provision is typically part of a negotiated settlement, whereby the employee agrees to give up certain benefits to which they are entitled in exchange for inclusion of this proration language.  We find Respondents’ admitted desire to use proration language as a “bargaining chip” in these circumstances is inappropriate.  This is particularly true since the South Carolina legislature did not choose to enact a reverse-offset provision. Moreover, if, as Respondents argue, the Commission has not been authorized by the General Assembly to include proration language, then the Commission would not have the authority to include such language in cases where the employers and carriers give their “permission,” as the Commission’s authority is defined by law, not by consent.

Respondents further argue that, because the maximum period for benefits is generally 500 weeks, this is the maximum period that can be used for proration.  See S.C. Code Ann. § 42-9-10(A) (Supp. 2009) (“In no case may the period covered by the compensation exceed five hundred weeks except as provided in subsection (C).”); id. § 42-9-10(C) (stating “any person determined to be totally and permanently disabled who as a result of a compensable injury is a paraplegic, a quadriplegic, or who has suffered physical brain damage is not subject to the five-hundred-week limitation and shall receive the benefits for life”).

The 500 weeks limitation, however, represents the limit of the monetary amount of compensation that may be recovered.  It has no relation to the duration or the extent of the injury.  A permanent impairment, by definition, lasts for a lifetime.  Thus, the proration of compensation over the claimant’s lifetime is a reasonable method of accounting for this compensation.  Proration of the lump sum award does not affect the amount of the award in any manner.  Rather, it affects only the allocation of the award; it is purely an accounting mechanism specifically approved of by the Social Security Administration in determining the amount of a Social Security offset.  The amount of the award is still limited to the value of 500 weeks of compensation and it has absolutely no effect on the liability of Respondents.

There is no reason for Respondents to object to this proration, except as a means of giving them the power to either positively or negatively impact a claimant’s receipt of Social Security disability benefits based on whether they confer or withhold their consent to proration language.  This kind of arbitrary outcome is not in accord with the purpose of our Workers’ Compensation Act.  SeeCase v. Hermitage Cotton Mills, 236 S.C. 515, 115 S.E.2d 57 (1960) (observing the courts of this country have universally viewed workers’ compensation law as being enacted for the benefit of employees and that the law is to be liberally construed for the employees’ protection; further, one of the primary purposes of the Act is to help prevent employees from becoming charges upon society for support).

We do not believe that simply prorating benefits for the maximum period of weekly benefits available under state law is a rational solution to the problem of how to account for workers’ compensation benefits.  Such a method assumes the award is intended as compensation only for that period of time, when in reality the award is intended as compensation for a lasting disability.  A permanent disability does not end after 500 weeks, and it thwarts the authority of the Commission to prohibit it from apportioning the award in the manner it deems appropriate.  See 70B Am. Jur. 2d Social Security and Medicare § 1501 (2000) (observing proration for the maximum period of benefits under state law is inconsistent with the purpose of the Social Security Act as it improperly assumes the state lump sum workers’ compensation award represents the maximum benefit over the shortest period of time, thus guaranteeing application of the Social Security offset); see also 1 Harvey L. McCormick, Social Security Claims and Procedures§ 8:32 (5th ed. 1998) (noting at least one federal Circuit Court of Appeals has held that the Social Security Administration was required to prorate a lump-sum award or settlement over the remainder of an individual’s working life (citing Hodge v. Shalala, 27 F.3d 430 (9th Cir. 1994))).

The purpose of allocating a lump sum disability award over the claimant’s lifetime is to make sure a claimant is not being economically penalized by the Social Security Administration’s calculation of an offset.  The Social Security Administration expressly recognizes and accepts such allocations as a matter of routine practice.  See 2A Soc. Sec. Law & Prac. § 26:72 (2006) (noting a state’s proration based on life expectancy in the workers’ compensation order is the Social Security Administration’s first choice to use when calculating any offset).

Section 42-3-180 of the South Carolina Code confers a general grant of authority on the Commission to address all issues arising under the Workers’ Compensation Act that are not otherwise provided for under South Carolina law.  S.C. Code Ann. § 42-3-180 (1985).  Further, section 42-9-301 authorizes the Commission to establish and award lump sum payments.  Id. § 42-9-301.

The Commission is empowered to interpret its provisions and to issue regulations governing the administration of awards.  See id.§ 42-3-30 (“The Commission shall promulgate all regulations relating to the administration of the workers’ compensation laws of this State necessary to implement the provisions of this title and consistent therewith.”); see also 100 C.J.S. Workers’ Compensation § 718 (2000) (“Workers’ compensation boards or commissions are generally empowered to make and enforce rules and regulations to enable the board or commission to carry out . . . its duties, and such rules and regulations have the force and effect of law if reasonable and not inconsistent with pertinent statutory provisions.”).

We hold the Commission has the authority to prorate a lump sum award over a claimant’s expected lifetime pursuant to its general authority under section 42-3-180 to address all issues arising under the Act and its statutory authority to fix lump sum awards.  It is undisputed that the Commission is responsible for making factual findings and addressing matters pertinent to the questions and issues before it.  S.C. Code Ann. § 42-17-40(A) (Supp. 2009); S.C. Code Ann. Regs. 67-709 (1990 & Supp. 2009).  Using the life expectancy table provided by South Carolina law to prorate a lump sum award given for a life-long disability is simply a mathematical calculation and, as such, a statement regarding this amount is a factual finding that is within the Commission’s purview.  This proration is specifically accepted under the procedures established for administering Social Security benefits and it does not affect the amount of, or the liability for, the workers’ compensation award in any way.

“A state workers’ compensation commission or board is, in the first instance, responsible for effectuating the purposes of the workers’ compensation act by administering, enforcing, and construing its provisions in order to secure its humane objectives.”  100 C.J.S. Workers’ Compensation § 706 (2000).  “Such commission, board, or bureau is vested with the authority to formulate policies and standards for administering the workers’ compensation act.”  Id.

The Commission has a long-standing practice of including proration language in the orders it issues.  Despite the result reached in the current case, the Commission has since expressly concluded in subsequent cases that it has the authority to prorate lump sum awards in order to serve the purposes of the Workers’ Compensation Act, and it has done so over the objection of the employer and its carrier.[4]  We find Respondents’ contention that use of the proration language cannot be used without its consent is untenable and is not a proper interpretation of our Workers’ Compensation Act.

In our view, the Commission’s proration of lump sum awards over an employee’s life expectancy is clearly within the purview of the Commission’s authority and serves to further the Act’s humane objectives.  This is particularly true in light of the fact that the Social Security Administration itself specifically provides for and accepts such proration language from state workers’ compensation commissions all over the country when calculating the applicable offset. To deny proration in these circumstances to the employees of our state would be inconsistent with the recognized purpose of our Workers’ Compensation Act.

III.  CONCLUSION

Based on the foregoing, we hold the Commission has the authority to prorate a lump sum award over a claimant’s life expectancy using the life expectancy table provided by South Carolina law.  Consequently, we return this case to the circuit court for it to remand it forthwith to the Commission so it can rule on James’s proration request.

REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.

[1] Three organizations, the South Carolina Association for Justice, the South Carolina Injured Workers’ Advocates, and the South Carolina Appleseed Legal Justice Center, filed a joint Brief of Amici Curiae in support of the petition for rehearing, and we granted their motion to participate in oral argument.  An Amicus Brief opposing the petition was filed by the South Carolina Self-Insurers Association, Inc.

[2]  See S.C. Code Ann. § 19-1-150 (Supp. 2009) (stating this table must be used to establish the life expectancy of a person in a civil action or other litigation and must be received by all courts and all persons having the power to determine evidence, along with other evidence as to the person’s health, constitution, and habits).

[3] See generally Kolle v. State, 386 S.C. 578, 690 S.E.2d 73 (2010) (finding the State’s argument regarding standing was not preserved where it was not raised at the PCR hearing, but was raised in a motion for reconsideration); Michael P. v. Greenville County Dep’t of Soc. Servs., 385 S.C. 407, 413 n.4, 684 S.E.2d 211, 214 n.4 (Ct. App. 2009) (noting some of the appellants’ arguments in support of standing were not preserved for consideration on appeal because they were not raised to and ruled upon by the family court); A Fast Photo Express, Inc. v. First Nat’l Bank of Chicago, 369 S.C. 80, 630 S.E.2d 285 (Ct. App. 2006) (discussing whether the issue of standing was properly preserved for appeal and concluding the issue was preserved because it was both raised to and ruled upon by the master-in-equity).

[4]  See Pressley v. REA Constr. Co., 374 S.C. 283, 288, 648 S.E.2d 301, 303 (Ct. App. 2007) (stating “ordinarily, the construction of a statute by an agency charged with its administration will be accorded the most respectful deference and will not be overruled absent compelling reasons”).