SC Workers’ Compensation – Third Party Automobile Insurance Offset

Jan 27, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death

This recent SC Supreme Court decision discusses the interplay between workers’ compensation cases and third party lawsuits. If you are injured at work by someone other than your employer or coworkers, you may have a second lawsuit against that person or entity. In workers’ compensation cases, you do not have to prove negligence, but your benefits are limited. For example, you do not get “pain and suffering.” In the third party action, you must prove negligence, but you can potentially recover additional compensation, such as “pain and suffering” and possibly even punitive damages. Any monies paid by workers’ compensation will be subject to a lien, but an experienced trial attorney will negotiate that amount at the end of the case. Most firms have to “associate” another lawyer to handle the third party case. We do not. We can take care of you from start to finish. One firm. Two recoveries.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Darryl Sweetser, Individually and on Behalf of All Others Similarly Situated,[1]Appellant,

v.

South Carolina Department of Insurance Reserve Fund, Respondent.

Appeal From Georgetown County
Benjamin H. Culbertson, Circuit Court Judge

Opinion No. 26905
Heard November 18, 2010 – Filed December 20, 2010

AFFIRMED

David L. Hood, of Georgetown, and Mark D. Chappell and W. Hugh McAngus, Jr., both of Chappell, Smith & Arden, of Columbia, for Appellant.

Andrew F. Lindemann, of Davidson & Lindemann, of Columbia, for Respondent.

ACTING CHIEF JUSTICE PLEICONES:  Appellant was injured when his employer’s vehicle in which he was riding as a passenger collided with a vehicle driven by an uninsured driver.  Appellant has collected $13,520.21 in workers’ compensation benefits, and has a tort suit pending against the uninsured driver.  Respondent issued an automobile liability policy to employer.  It provides for $15,000 in uninsured motorist (UM) coverage, but also has an offset clause for compensation benefits.  Fifteen thousand dollars is the minimum coverage under the UM statute.  S.C. Code Ann. § 38-77-150 (2002).

Appellant filed this declaratory judgment action seeking a determination whether his tort recovery can be offset against his compensation award if the result of that offset would be to reduce his recovery under the UM provision below $15,000.  The trial court granted respondent summary judgment, holding that the policy’s offset clause[2] was “valid and enforceable” even if the effect were to reduce appellant’s recovery below the statutorily mandated minimum coverage.  Appellant appeals.  We affirm.

ISSUE

Can a workers’ compensation offset clause be applied so as to reduce an employee’s recovery under an employer’s automobile liability policy’s UM coverage below the statutory mandatory minimum?

ANALYSIS

All motor vehicles required to be registered in South Carolina must be insured.  S.C. Code Ann. § 56-10-10; § 56-10-220 (2004).  Pursuant to South Carolina’s automobile insurance statute, “No automobile insurance policy . . . may be issued or delivered unless it contains a provision by endorsement or otherwise [providing] uninsured motorist [UM]” coverage.  § 38-77-150(A).[3]  However, this chapter also contains S.C. Code Ann. § 38-77-220, titled “Additional liability which automobile insurance policy need not cover,” which provides:

The automobile policy need not insure any liability under the Workers’ Compensation Law nor any liability on account of bodily injury to an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance, or repair of the motor vehicle nor any liability for damage to property owned by, rented to, in charge of, or transported by the insured.

This case presents the novel question whether, when an employer chooses to cover its non-domestic employee under an automobile liability policy, the employee’s recovery under the policy’s mandatory UM coverage can be reduced by, or offset against, the workers compensation benefits received by the employee.

When an employer has chosen to insure his non-domestic employees under his automobile liability policy, and a part of that policy has voluntary underinsured (UIM) coverage, that policy may lawfully provide for a set-off of UIM benefits against the compensation benefits received by an injured employee. Williamson v. U.S. Fire Ins. Co., 314 S.C. 215, 442 S.E.2d 587 (1994).

In Williamson, the Court was asked whether an employer’s automobile liability policy which contained a workers’ compensation offset provision would apply to an employee claim for UIM benefits.  The Williamson opinion noted that in Ferguson v. State Farm Mut. Auto Ins. Co., 261 S.C. 96, 198 S.E.2d 522 (1973), the Court struck down a provision in an employee’s own policy which purported to offset workers compensation benefits against the employee’s UM recovery.  In Ferguson, the Court stated:

The public policy declared by our uninsured motorist statute imposes an obligation on insurers to provide protection to their insureds against loss caused by wrongful conduct of an uninsured motorist, and any limiting language in an insurance contract which had the effect of providing less protection than made obligatory by the statutes is contrary to public policy and is of no force and effect.

There is no mention of the predecessor to § 38-77-220 in the Ferguson decision.  Appellant relies on this passage from Ferguson to argue for reversal.

Williamson distinguished Ferguson because the policy in Ferguson was the employee’s own while Williamson involved the employer’s policy.  The Williamson opinion also states “The same statute and public policy does not operate in cases where voluntary coverage has been provided by an employer.”  It is not immediately clear what “same statute” or “voluntary coverage” theWilliamson court is referring to here.  We conclude, and appellant agreed at oral argument, that the reference to a statute is to § 38-77-220.  Moreover, the reference to voluntary coverage is not to UIM coverage, but rather to the employer’s voluntary decision to purchase bodily injury coverage for its non-domestic employees.

The parties make much of the fact that the predecessor to § 38-77-220 was not cited in Ferguson.  We find the omission easily explainable as that statute applies only to employers who are purchasing automobile insurance policies.[4]  Section  38-77-220 first permits an automobile policy to exclude “any liability under the Workers’ Compensation Law.”  Second, the statute permits an employer to exclude an employee, other than a “domestic,” altogether from bodily injury coverage under the policy.  Williamson,supra; see also State Farm Mut. Ins. Co. v. James, 337 S.C. 86, 522 S.E.2d 345 (Ct. App. 1999) (repeating this holding).

Section 38-77-220 can only apply to employers as only they can “insure any liability under” compensation law or have employees. Williamson also holds that one of the policies underlying § 38-77-220 is to relieve the employer of paying double premiums, one to its workers’ compensation carrier and one to its automobile liability policy carrier, a policy consideration which is not applicable to employees.  Read in context, and made somewhat more clear in the next  paragraph of the opinion, Williamson holds not only that § 38-77-220 did not apply in Ferguson, but that also the public policy against permitting an offset against UM benefits expressed inFerguson does not apply to employer-purchased liability policies.

Appellant also relies on the following passage from Williamson to argue that the compensation offset is only available to an employer who voluntarily purchases UIM coverage and not to the statutorily mandated UM coverage:

As long as the employee is able to fully recover the damages sustained, we believe the better public policy is to encourage employer voluntary coverage by not exposing employers to mandatory duplicative insurance premiums and by not allowing duplicative recoveries by employees.  We therefore hold that S.C. CODE ANN. § 38-77-220 (1989) allows an employer’s automobile insurance carrier to offset workers’ compensation benefits received by an employee.  The offset shall be applied against the total of damages sustained once the employee has been fully compensated for the injuries.

Williamson, 314 S.C. at 219, 442 S.E.2d at 589.

Read in context, the “voluntary” reference in this Williamson passage and in the passage cited earlier, is to employers who voluntarily decide to cover their non-domestic employees despite the opt-out provision of § 38-77-220 and not, as appellant would read it, to voluntary coverages such as UIM.

The public policy of this State is to encourage employers to voluntarily purchase bodily injury coverage for their employees in their automobile liability policies.  Williamson, supra.  Once such policy is bought, it will necessarily include mandatory UM coverage as required by § 38-77-150.  See Antley v. Nobel Ins. Co., 350 S.C. 621, 567 S.E.2d 872 (Ct. App. 2002).  If an employer opts to provide voluntary bodily injury coverage for his employees, no public policy is violated if the employer is permitted to offset the employee’s recovery under the automobile policy against the employee’s compensation benefits, so long as that offset does not operate so as to make the employee less than whole.  Here, assuming appellant receives some recovery in his tort suit against the uninsured driver, the first $13,520.21 of that recovery will be offset against the policy, and appellant will then draw against the $15,000 in employer-provided UM coverage until his damages are paid or the policy limit is reached.[5]

CONCLUSION

The circuit court order permitting respondent to offset appellant’s workers’ compensation benefits against his recovery under the automobile liability policy is

AFFIRMED.

KITTREDGE, HEARN, JJ., and Acting Justices James E. Moore and J. Ernest Kinard, concur.

[1] As of this juncture there is no class action.

[2] Respondent’s policy covers the following “limit of liability:”

3.  Any amount payable under this insurance shall be reduced by:

a.      All sums paid or payable under any workers’ compensation . . . law

[3] Subject, of course, to persons who opt to be uninsured under § 56-10-510.

[4] To the extent State Farm Mut. Auto. Ins. Co. v. Calcutt, 340 S.C. 231, 530 S.E.2d 896 (Ct. App. 2000) conflicts with this interpretation of § 38-77-220, it is overruled.

[5] To the extent that Antley indicates that the Court of Appeals would reach a different result, it is overruled.

Third Party Claims in SC Workers’ Comp Cases

Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death

This recent workers’ compensation case reaffirms that third party cases must be handled properly or remedies can be “elected” (i.e. lost). Accidents “on the job” can sometimes involve cases against “third parties.” Automobile accidents while at work or jobs where other employees from a different company cause injury are common such examples.  In those cases, you should first finish treatment and resolve your workers’ compensation case. Then, and only then, you should explore a third party case. You can recover money for “pain and suffering” in the third party case, and there will be a lien on any recovery from the workers’ compensation insurance carrier.  However, if handled properly, an experienced personal injury trial attorney can maximize your case’s value and ultimate recovery.

Stephen Brad Wise, Appellant,
v.
Richard Wise d/b/a Wise Services and the South Carolina Uninsured Employers Fund, Respondents.

John G. Felder, of St. Matthews; Robert Merrell Cook, II, of Batesburg-Leesville, for Respondents.

KONDUROS, J.:

Stephen Brad Wise (Claimant) appeals the circuit court’s dismissal of his workers’ compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. He maintains the circuit court could not take judicial notice of the existence of his civil action when evidence of that claim did not appear in the appellate record. We affirm.

FACTS/PROCEDURAL HISTORY

This workers’ compensation action arose out of an accident Claimant had on October 30, 2000, while working for Richard Wise d/b/a Wise Services (Employer).^[1] Claimant was riding on top of a bank building that was being moved when he came into contact with a high voltage electrical line in Orangeburg, South Carolina and sustained severe burns as a result. On June 26, 2001, Claimant filed a Form 50 against Employer for medical and compensation benefits for his injuries. On July 13, 2001, Employer filed a Form 51, denying Claimant was an employee and asserting he was an independent contractor. Additionally, Employer contended it was not covered by the Workers’ Compensation Act (the Act) because it does not have the requisite number of employees. Employer also maintained if Claimant was an employee, he was a casual employee and thus exempt under section 42-1-360 of the South Carolina Code. The South Carolina Uninsured Employers’ Fund (the Fund) contended Claimant was not subject to the Act. It further asserted that if Claimant was a covered employee, his weekly wage should be figured at the minimum compensation of $75 per week because he failed to file a tax return for his wages from Employer.

On May 2, 2002, the single commissioner held a hearing on the matter. On October 18, 2002, five months after the single commissioner conducted the hearing but prior to its issuing the order, Claimant filed a tort action against Employer and the City of Orangeburg (the City). On November 26, 2003, the single commissioner issued an order denying the claim, finding Employer regularly employed only three employees and thus was exempt from the Act and not required to provide workers’ compensation insurance coverage. The single commissioner further found because Employer was exempt from coverage, the Fund had no responsibility to provide benefits to Claimant. Finally, the single commissioner found the Workers’ Compensation Commission had no jurisdiction over the claim and dismissed it.

On December 8, 2003, Claimant filed a Form 30 appealing the single commissioner’s order to the Appellate Panel. On January 4, 2004, Claimant obtained a default judgment in the amount of $900,000 in the tort action against Employer. Claimant and the City reached a settlement.

On June 22, 2004, the Fund filed a motion to dismiss the appeal or order new evidence taken before the single commissioner. The Fund contended Claimant had waived his right to appeal his claim by filing suit against Employer alleging his employment did not fall within the scope of the Act and prosecuting that action to a final judgment of $900,000. Additionally, the Fund maintained Claimant did not notify it or the Commission of his suit against the City as a third-party tortfeasor, which section 42-1-560(b) of the South Carolina Code requires, and as a result he elected his remedy and was barred from receiving any benefits under the Act. The Fund provided an affidavit, a copy of Claimant’s summons and complaint against Employer and the City, the default judgment against Employer, and the order from February 24, 2004, dismissing the action against the City with prejudice. The Appellate Panel dismissed the workers’ compensation action, finding (1) Claimant, Employer, or their attorneys did not notify the Commission or the Fund of the civil suit; (2) when Claimant filed his civil action on the same issues that were before the Commission, the matter was removed from the Commission’s jurisdiction, and the Claimant alleged his employment did not fall within the parameters of the Act; and (3) accordingly, the matter is res judicata.

Claimant appealed to the circuit court, which reversed the order to dismiss, finding Regulation 67-215(B)(1) of the South Carolina Code of Regulations prohibited the Appellate Panel from addressing a motion to dismiss. The circuit court remanded the action to the Full Commission for it to consider the Fund’s motion to submit new evidence. The Full Commission then remanded the matter to the Appellate Panel, which granted the motion to submit additional evidence and remanded the action to the single commissioner to consider the new evidence. Claimant appealed the Appellate Panel’s allowance of additional evidence to the circuit court, which reversed the Appellate Panel, finding the Appellate Panel’s order was too summary to allow a meaningful review. On remand, the Full Commission issued an order granting the Fund’s motion to submit additional evidence, finding the record contains no evidence contrary or similar to the new evidence; thus, the new evidence was not cumulative or impeaching. Accordingly, the Full Commission remanded the action to the single commissioner to determine whether Claimant had elected his remedy.

Claimant again appealed to the circuit court, asserting the evidence did not fit the meaning of newly discovered evidence under Regulation 67-707 of the South Carolina Code. The circuit court reversed, finding the evidence did not constitute newly discovered evidence under Regulation 67-707. The circuit court stated: “The evidence of facts sought to be admitted did not exist at the time of the hearing before the [s]ingle [c]ommissioner. . . . [T]he evidence sought to be admitted does not constitute after discovered evidence within the meaning of Regulation 67-707.” (quoting State v. Haulcomb, 260 S.C. 260, 270, 195 S.E.2d 601, 606 (1973) (“[A]fter discovered evidence refers to facts existing at time of trial of which . . . [the] aggrieved party was excusably ignorant.”)). On remand, the Appellate Panel denied the Fund’s motion to admit additional evidence pursuant to Regulation 67-707 and ordered Claimant’s appeal as to whether Employer was subject to the Act be set for a hearing. Following the hearing, the Appellate Panel reversed the single commissioner, finding Employer had four employees in his employment, and thus, it was subject to the Act. The Fund appealed to the circuit court, which reversed the Appellate Panel, finding the action was “barred by the election of remedies of the [C]laimant by instituting and settling his tort claims without notice to and the consent of the [E]mployer and the [Fund].” The circuit court also found in the alternative, “pursuant to the election of jurisdiction provision of [s]ection 42-5-40 the Commission was divested of jurisdiction over this claim and its order is vacated.”^[2] 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. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). 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 when the decision is affected by an error of law. Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).

The substantial evidence rule governs the standard of review in workers’ compensation decisions. Frame v. Resort Servs. Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct. App. 2004). The Appellate Panel’s decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct. App. 2005). An appellate court can reverse or modify the Appellate Panel’s decision only if the decision is affected by an error of law or is “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005) (citations and internal quotation marks omitted).

LAW/ANALYSIS

Claimant argues the circuit court erred in considering the documents relating to the civil action because they were not part of the record. He further contends the circuit court erred in taking judicial notice of the civil action because the Fund never requested the Appellate Panel take notice of it or raise it as a ground on appeal. We disagree.

I. Election of Remedies/Third-Party Action

When an employee’s claim arises out of and in the course of his or her employment, the Act provides the exclusive remedy. See Sabb v. S.C. State Univ., 350 S.C. 416, 422, 567 S.E.2d 231, 234 (2002). “Every employer and employee . . . shall be presumed to have accepted the provisions of this title respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby.” S.C. Code Ann. § 42-1-310 (Supp. 2010).

“When an employee and his or her employer accept the provisions of the Act, the employee’s remedies under the Act exclude all other rights and remedies of the employee.” Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 325-26, 523 S.E.2d 766, 772 (1999) (citing S.C. Code Ann. § 42-1-540 (1985)).

THIS SECTION IS KNOWN AS THE EXCLUSIVE REMEDY PROVISION, AND IT shrouds an employer with immunity from any actions at law instituted by the employee. Such immunity is part of the broader quid pro quo arrangement imposed upon the employer and employee by the Act. The employee” receives the right to swift and sure compensation” in exchange for giving up the right to sue in tort; the employer receives such tort immunity in exchange for complying with those provisions of the Act that insure swift and sure compensation for the employee.

Id. at 326, 523 S.E.2d at 772. “The Act achieves such’ swift and sure compensation’ by requiring the employer to secure the payment of compensation under [section 42-5-10 of the South Carolina Code (1985)].” Id. at 326, 523 S.E.2d at 773. Section 42-5-10 provides: “Every employer who accepts the compensation provisions of this Title shall secure the payment of compensation to his employees in the manner provided in this chapter.” An employer that fails to secure such compensation becomes liable either under the Act or in an action at law.Harrell, 337 S.C. at 327, 523 S.E.2d at 773 (citing S.C. Code Ann. § 42-5-40 (1985)). “[T]he Act prohibits an employee from recovering both workers’ compensation and a tort judgment from an employer who fails to secure compensation.” Id. at 329, 523 S.E.2d at 774.

A claimant has three remedies for job-related injuries:

(1) To proceed solely against the employer thereby allowing the employer-carrier the opportunity to pursue reimbursement against the third party for its obligated payments.

(2) To proceed solely against the third party tort feasor under [section] 42-1-550 by instituting and prosecuting an action at law; and

(3) To proceed against both the employer-carrier and the third party tort feasor by complying with [section] 42-1-560.

Callahan v. Beaufort County Sch. Dist., 375 S.C. 92, 95-96, 651 S.E.2d 311, 313 (2007).

Section 42-1-560 of the South Carolina Code (1985) provides the requirements for simultaneously pursuing a third-party action and a workers’ compensation claim. It states: “Notice of the commencement of the [third-party] action shall be given within thirty days thereafter to the . . . Commission, the employer[,] and carrier upon a form prescribed by the . . . Commission.” § 42-1-560(b). The statute clearly requires timely notice be given to all three entities: employer, carrier, and Commission. Callahan, 375 S.C. at 96, 651 S.E.2d at 314. “The object of [section] 42-1-560 is to effect an equitable adjustment of the rights of all the parties. It would defeat this objective to allow the employee to demand compensation from the employer after having destroyed the employer’s normal right to obtain reimbursement from the third party.” Fisher v. S.C. Dep’t. of Mental Retardation-Coastal Ctr., 277 S.C. 573, 575-76, 291 S.E.2d 200, 201 (1982) (citation and internal quotation marks omitted). “[T]he settlement of a third party claim without notice to the employer and carrier bars a workers’ compensation action.” Kimmer v. Murata of Am., Inc., 372 S.C. 39, 52, 640 S.E.2d 507, 513-14 (Ct. App. 2006). In Fisher, the supreme court held that a claimant had elected a remedy, thus forgoing workers’ compensation benefits, by settling a third-party claim without complying with the notice requirements of section 42-1-560, even though the carrier had actual knowledge of the third-party suit. Id.

This court has previously explained the reasoning behind a settlement serving as a bar to a workers’ compensation action:

As a result of the failure to notify of a third party claim, the employer-carrier loses a voice in the litigation and is clearly prejudiced. That voice encompasses the right to select one’s own counsel, conduct one’s own investigation, and direct the litigation. Notice makes it possible for the employer-carrier to offer the employee meaningful assistance in prosecuting the third party claim. With timely knowledge the employer-carrier gains the opportunity to lend support to an effort that could lead to the carrier’s recovery of some or all of the compensation it might later be required to pay the injured employee under the Workers’ Compensation Act. The statute’s underlying purpose serves to protect the carrier’s subrogation interests and prevents an employee’s double recovery.

Kimmer, 372 S.C. at 51, 640 S.E.2d at 513 (citations omitted).

Case law makes clear that an employee cannot recover against an employer under both a workers’ compensation action and a civil action. Here, Claimant recovered $900,000 from Employer in the form of a default judgment. Further, because Claimant did not strictly comply with the notice provisions in filing suit against a third party, he is barred from recovering under the Act. However, we must determine if the evidence of the civil suit could be admitted as new evidence or the circuit court could take judicial notice of it.

II. Judicial Notice

“Notice may be taken of judicially cognizable facts” in administrative cases. S.C. Code Ann. § 1-23-330(4) (2005).

Appellate courts are generally reluctant to notice adjudicative facts even when those facts may be absolutely reliable. Notice of “facts” for the first time on appeal may deny the adverse party the opportunity to contest the matters noticed; it may also violate the general principle that appellate review should be limited to the record. Finally, appellate courts, limited to the “cold” record, cannot be as sensitive to the appropriateness of judicial notice as the trial judge. For the foregoing reasons we hold that original judicial notice of adjudicative facts at the appellate level should be limited to matters which are indisputable.

Masters v. Rodgers Dev., 283 S.C. 251, 256, 321 S.E.2d 194, 197 (Ct. App. 1984) (citations omitted). “A court can take judicial notice of its own records, files[,] and proceedings for all proper purposes including facts established in its records.” Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct. App. 1984). “It is not error for a judge to take judicial notice of what was stated in [a] former opinion in [a] prior action of the same case.” Id.

Claimant’s argument as to judicial notice revolves around the fact that the Fund did not request the Appellate Panel take judicial notice of the suit or raise judicial notice in its grounds on appeal to the circuit court. As Claimant’s own case law states, an appellate court can take judicial notice of something that was not before the trial court if it is indisputable. The summons and complaint and default judgment show that Claimant did file an action and recover against Employer thus making that his exclusive remedy. Additionally, he filed suit and entered a settlement against a third party without providing any notice to the Fund or the Commission as required by statute, thus barring the workers’ compensation action.

III. Additional Evidence

Additionally, the evidence of the civil claim could be admitted as new evidence under Regulation 67-707 of the South Carolina Code of Regulations (Supp. 2010), which provides the requirements for the admission of additional evidence in workers’ compensation cases. Regulation 67-707 states:

A. When additional evidence is necessary for the completion of the record in a case on review the Commission may, in its discretion, order such evidence taken before a Commissioner.

B. When a party seeks to introduce new evidence into the record on a case on review, the party shall file a motion and affidavit with the Commission’s Judicial Department.

C. The moving party must establish the new evidence is of the same nature and character required for granting a new trial and show:

(1) The evidence sought to be introduced is not evidence of a cumulative or impeaching character but would likely have produced a different result had the evidence been procurable at the first hearing; and

(2) The evidence was not known to the moving party at the time of the first hearing, by reasonable diligence the new evidence could not have been secured, and the discovery of the new evidence is being brought to the attention of the Commission immediately upon its discovery.

Claimant argues because the circuit court originally found it was not newly discovered evidence and the Fund did not appeal, it was the law of the case. However, an appeal of that ruling would have been interlocutory. See Leviner v. Sonoco Prods. Co., 339 S.C. 492, 494, 530 S.E.2d 127, 128 (2000) (holding an order by the circuit court remanding the matter to the single commissioner for further proceedings was not directly appealable). Therefore, the circuit court’s original decision to not allow the evidence as newly discovered was not the law of the case.

The evidence of the civil claim meets the criteria in the Regulation for the admission of new evidence: (1) it is not cumulative or impeaching character and would have produced a different result if produced at the first hearing and (2) was not known and could not have been discovered at the time of the first hearing and was brought to the attention of the Commission immediately upon its discovery. Nothing requires that the facts be in existence at the time of the first hearing by the single commissioner.^[3] Accordingly, the circuit court’s decision is

AFFIRMED.

HUFF and LOCKEMY, JJ., concur.

[1] We note at the outset the procedural history of this case is difficult to follow.

[2] The circuit court stated it had erred in its prior determination that the evidence of the existence of Claimant’s tort action, default judgment, and settlement could not be admitted under Regulation 67-707.

[3] Claimant also argues the circuit court erred in failing to affirm the Appellate Panel’s finding that Employer had four employees and thus was subject to the Act. We need not address this issue. 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 a prior issue is dispositive of the appeal).