May 20, 2012 | Uncategorized, Workers' Compensation
The issue on appeal in this recent decision is fairly straightforward. The principle is that parties are entitled to be present and cross-examine witnesses. If they are not there, their fundamental rights are compromised. That’s easy to understand and appreciate. I believe the bigger message here is how hard cases are being fought now. While this case involved a serious injury, the body part involved was the foot. Even with a high compensation rate, it would seem that the legal fees defending this case could actually surpass the amount ultimately awarded to the injured worker. The point is workers’ compensation cases are not easy anymore.
There is a misunderstanding among many lawyers and the public at large that you really do not have to fight hard in worker’s compensation cases. Fault in not an issue. If you are hurt at work, you get paid. Many lawyers, especially in these difficult economic times, are randomly taking these cases and trying to settle them without fully appreciating all that is required to maximize recovery. In addition, there are other inter-related issues that come into play with serious, permanent disability cases. If you have been seriously injured on-the-job, you need to carefully review a potential lawyer’s actual experience and qualifications.
Here at Reeves, Aiken & Hightower LLP, attorney Robert J. Reeves has been practicing workers’ compensation law for over 22 years. For the first 7 years, he was an insurance defense lawyer. His experiences taught him how to fully prepare cases for hearing and anticipate defenses that will be used against you. Prior to going to law school, he was an ICU Registered Nurse (RN). He understands complex injury because he used to treat patients with life-threatening trauma. He can also appreciate what you and your family are going through. For the past 16 years, Mr. Reeves has exclusively fought for injured workers and has handled just about every type of injury case imaginable. If given the opportunity, he will work tirelessly for you. For more information about our firm, please visit our website www.rjrlaw.com. For a private consultation, please call us at 877-374-5999.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Gaines Adams, Respondent,
v.
H.R. Allen, Inc., CNA, and Zurich North America, Defendants,
Of whom H.R. Allen, Inc. and Zurich North America are Appellants,
and CNA is a Respondent.
Appeal from Greenville County
Edward W. Miller, Circuit Court Judge
Opinion No. 4967
Heard March 20, 2012 – Filed May 2, 2012
VACATED AND REMANDED
James Paul Newman Jr., Weston Adams III, Helen F. Hiser, and Erroll Anne Y. Hodges, all of Columbia, for Appellants.
Alan Randolph Cochran, of Greenville; James P. Newman and Andrew E. Haselden, both of Columbia, for Respondents.
PER CURIAM: Appellants, H.R. Allen, Inc. (Employer) and Zurich North America (Zurich), appeal from an order of the circuit court affirming the Workers’ Compensation Commission’s Appellate Panel’s (Commission’s) award of benefits to Respondent Gaines Adams.
Although Appellants raise six issues on appeal, the threshold issue of procedural due process is determinative. We hold procedural due process requires that the parties to a rehearing must be provided an opportunity to be heard and to confront and cross-examine witnesses. Accordingly, we vacate the circuit court’s ruling and remand the case to the Commission to conduct a de novo hearing on the merits.
FACTS/PROCEDURAL HISTORY
On March 15, 1999, Adams fell from a ladder, shattering a bone in his left heel.[1] Dr. Michael Tollison performed an ORIF—open reduction internal fixation. Adams returned to “light duty” on August 30, 1999. On December 17, 1999, Dr. Tollison determined Adams had reached maximum medical improvement (MMI) and discharged him with twenty-four percent impairment of the left foot. Dr. Tollison’s progress note stated that in the future Adams “may require a subtalar joint fusion with tribal bone graft.” Adams’s work restrictions required him to avoid climbing ladders, walking on roofs, carrying heavy items, and working on scaffolds.[2]
Adams saw Dr. Tollison in 2001 for hypersensitivity in his left foot. Adams’s condition improved; however, Dr. Tollison again noted that Adams likely would require subtalar joint fusion. Adams did not visit Dr. Tollison again until October 2006.
In July 2006, Employer assigned Adams to work part-time installing overhead lighting fixtures at a distribution center. On October 17, 2006, Adams returned to Dr. Tollison with increased pain and lack of mobility in his left ankle. Dr. Tollison diagnosed Adams as having left, post-traumatic hind foot arthritis; left, sural nerve neuralgia; traumatic arthropathy involving ankle and foot; and mononeuritis of the lower limb. Adams returned to work with additional permanent restrictions and a letter from Dr. Tollison that stated: “If employer has no work available according to these restrictions, it is up to the employer to release [Adams] from work.” On October 26, 2006, Employer terminated Adams’s employment, stating “no permanent light duty work [was] available.”
On October 20, 2007, Adams filed a Form 50 contending he had sustained an accidental injury on October 26, 2006 due to “repetitive walking and standing on unlevel/hard surfaces.” CNA denied that Adams’s condition was caused by “a new accident”; asserted that compensability of any injury arising out of the March 1999 accident was barred; and stated CNA was not Employer’s workers’ compensation carrier on the date of Adams’s alleged injury. Adams subsequently added Zurich, Employer’s workers’ compensation carrier from December 13, 2005 to December 13, 2006, as a defendant.
The single commissioner conducted a hearing on May 7, 2008. Following the hearing, the commissioner left the record open for Dr. Tollison’s deposition. On June 16, 2008, the single commissioner ruled that Adams had sustained “a compensable injury, whether it is considered repetitive trauma culminating in the last injurious exposure on October 26, 2006[,] or whether this is considered a[n] October 26, 2006 on-the-job accident.” The commissioner dismissed CNA and found Zurich liable to Adams for benefits related to the October 26, 2006 injury, including fusion surgery and temporary, total disability benefits following surgery.
After Zurich requested review of the single commissioner’s decision, it became evident that the reporter’s equipment had malfunctioned and portions of the hearing were inaudible. Adams asked the Commission to remand the case to the single commissioner “to retake such testimony as may be necessary to replicate the record.” Thereafter, the Commission ordered: “[T]his matter is remanded to Commissioner Williams for rehearing.”
The single commissioner conducted the rehearing on January 15, 2009. Each of the participants, with the exception of Adams, was given a copy of the original transcript. Shortly after Adams began testifying, Zurich’s counsel repeatedly objected to testimony that it alleged was “outside the scope” of the original transcript. When CNA objected to Zurich’s attempt to follow up on Adams’s answer, Zurich explained: “But his answer wasn’t the same as it was in the original.”
Zurich asked the single commissioner for permission to question Adams’s supervisor about a description of the working conditions that had been posed to Dr. Tollison during his deposition. The commissioner denied Zurich’s request, stating:
The Single Commissioner: I’ll deny that, obviously. I already issued a ruling in this case based on the evidence. And I heard the evidence at the last case, so I didn’t need a transcript to make any ruling. So, I’m going to deny that motion right now.
Zurich: If we could just place that on the record, that we would like to have them address the hypothetical that the Claimant’s own attorney gave after the hearing so we couldn’t address it at the [first] hearing because he didn’t give it until afterward.
The Single Commissioner: I’m going to deny that, obviously, because my ruling wasn’t based on any of that. You can move on.
Following the rehearing, the single commissioner reissued the prior order. Zurich filed an application for review alleging numerous errors, including a contention that significant irregularities had occurred during the rehearing. On June 26, 2009, the Commission unanimously adopted the single commissioner’s order; thereafter, the circuit court conducted a hearing and affirmed the Commission’s order in its entirety. This appeal followed.
ISSUE ON APPEAL
Did the Circuit Court err in upholding the hybrid manner in which the single commissioner conducted the rehearing?
LAW/ANALYSIS
Appellants contend they “were forced to repeat the question portion of the original hearing, but the witnesses were allowed to answer in any way they saw fit, often providing new testimony.” Appellants argue that while Adams was allowed to answer questions freely, they were not allowed to ask “routine follow-up questions in response to new testimony.” They assert this “hybrid manner” of conducting the rehearing was “at worst a violation of Appellant’s due process rights and at best, highly unfair.”
Adams contends that the trial court has discretion to adopt “the most effective method of reconstruction” of a transcript. He additionally contends, “Appellant[s] suffered no consequential prejudice.”
Where portions of stenographic notes are lost prior to transcription, it is appropriate for the judge to accept affidavits of counsel and the court reporter to determine what transpired. China v. Parrott, 251 S.C. 329, 333-34, 162 S.E.2d 276, 278 (1968). However, the reconstructed record must allow for meaningful appellate review. State v. Ladson, 373 S.C. 320, 321, 644 S.E.2d 271, 271 (Ct. App. 2007). “A new trial is therefore appropriate if the appellant establishes that the incomplete nature of the transcript prevents the appellate court from conducting a meaningful appellate review.” Id. at 325, 644 S.E.2d at 274 (citations and internal quotation marks omitted).
The South Carolina Constitution provides that in procedures before administrative agencies: “No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard . . . .” Art. I, § 22 (2009 & Supp. 2011). The South Carolina Supreme Court has explained:
“Procedural due process requirements are not technical; no particular form of procedure is necessary. The United States Supreme Court has held, however, that at a minimum certain elements must be present. These include (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.”
In re Dickey, 395 S.C. 336, 360, 718 S.E.2d 739, 751 (2011) (quoting In re Vora, 354 S.C. 590, 595, 582 S.E.2d 413, 416 (2003)).
The Administrative Procedures Act (APA) requires that, in a contested case, all parties must be afforded the opportunity for a hearing. S.C. Code Ann. § 1-23-320(A) (2005 & Supp. 2011). The APA additionally requires: “Opportunity must be afforded all parties to respond and present evidence and argument on all issues involved.” S.C. Code Ann. § 1-23-320(E) (2005 & Supp. 2011). Moreover, the APA provides that, in a contested case, “[a]ny party may conduct cross-examination.” S.C. Code Ann. § 1-23-330(3) (2005).
In State v. Mouzon, the South Carolina Supreme Court distinguished between “trial errors, which are subject to harmless error analysis,” and “structural defects in the constitution of the trial mechanism, which defy analysis by harmless error standards.” 326 S.C. 199, 204, 485 S.E.2d 918, 921 (1997) (quoting Arizona v. Fulminante, 499 U.S. 279 (1991)). In LaSalle Bank Nat’l Ass’n v. Davidson, the court held that the failure of a judge to attend a mortgage foreclosure proceeding was a structural defect that violated the Appellants’ “constitutional guarantee to procedural due process.” 386 S.C. 276, 277, 688 S.E.2d 121, 121 (2009). There, the court ordered a new trial, stating: “The purported hearing was a nullity, and the resulting order must be vacated. The judge’s absence from the hearing deprived the [Appellants] of the opportunity to be heard and, thus violated their constitutional guarantee of procedural due process.” Id. at 281, 688 S.E.2d at 123; see also U.S. v. Marcus, 130 S. Ct. 2159, 2164 (2010) (stating that “certain errors, termed ‘structural errors,’ might ‘affect substantial rights’ regardless of their actual impact on an appellant’s trial”).
In this case, a comparison of the two transcripts supports Appellants’ allegation that the rehearing allowed Adams an opportunity to “amplify” the responses he provided at the first hearing, while Appellants were not provided the opportunity to cross-examine Adams on new responses. We are concerned by the single commissioner’s decision to provide all participants—except Adams—with a copy of the original transcript. In our view, the commissioner was required to treat all witnesses similarly. Had Adams been provided a copy of the original transcript, he—like the other witnesses—would have been in a position to read his transcribed responses and to complete the inaudible portions of the original testimony. Instead, Adams was provided the unique opportunity to “freely respond,” while Appellants were not allowed to freely cross-examine him.
We agree with Appellants’ contention that “the preferable options would have been to have reconstructed only the incomplete portions of the original transcript or to have remanded for an entirely new hearing.” While we agree the trial court has discretion in determining how to reconstruct missing portions of a transcript, this discretion must lie within the limits required by procedural due process. Here, although the Commission ordered a rehearing, the single commissioner conducted the subsequent hearing in a hybrid manner that was neither a true rehearing of the matter on the merits nor a straight-forward reconstruction of the original transcript. Such a hybrid approach to rehearing constitutes a structural defect that cannot be reviewed under the harmless error standard. While we are mindful of the importance of judicial efficiency, we find the hybrid rehearing procedure in this case violated Appellants’ right to procedural due process.[3]
CONCLUSION
Based on the foregoing, we vacate the circuit court’s order and remand the case to the Commission to conduct a de novo hearing on the merits.
VACATED AND REMANDED.
PIEPER, KONDUROS, and GEATHERS, JJ., concur.
[1] Any reference to a problem with Adams’s right lower extremity is a scrivener’s error; Adams sustained injuries to his left foot only.
[2] Respondent CNA was Employer’s workers’ compensation carrier, and this was an admitted accident.
[3] We decline to address Appellant’s remaining issues on appeal. 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).
Mar 18, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit 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 what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have 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 Supreme Court
Francis Ike Johnson, Respondent,
v.
Sonoco Products Company and GAB Robins, Inc., Appellants.
Appeal From Darlington County
James E. Lockemy, Circuit Court Judge
Opinion No. 26584
Heard November 19, 2008 – Filed January 20, 2009
AFFIRMED AS MODIFIED; AND REMANDED
Michael A. Farry and David A. Wilson, both of Horton, Drawdy, Ward & Jenkins, of Greenville, for Appellants.
Vernon F. Dunbar, of Turner, Padget, Graham & Laney, of Greenville, for Respondent.
PER CURIAM: Appellants Sonoco Products Company and GAB Robins, Inc. (collectively, Sonoco) argue the circuit court erred in granting Respondent Francis Ike Johnson’s motion to compel payment of his workers’ compensation benefits during the pendency of the underlying appeal. We disagree and affirm. We find that the circuit court’s award of workers’ compensation benefits in the underlying appeal was not stayed during the appeal. As a result, we conclude the circuit court retained authority to compel the payment of compensation benefits pursuant to Rule 225(a), SCACR. We further affirm Johnson’s entitlement to interest and related sanctions. We modify the order of the circuit court only insofar as the effective date of Johnson’s entitlement to relief. We remand to the circuit court to calculate Johnson’s entitlement to interest as of June 15, 2005, thirty days following entry of the circuit court order awarding Johnson benefits.
I.
The single commissioner awarded benefits to Johnson. The commission reversed, and Johnson appealed to the circuit court. The circuit court reversed the commission and awarded benefits to Johnson. Sonoco’s motion to reconsider was denied, and the circuit court order became final on May 16, 2005.
Sonoco appealed to the Court of Appeals, which affirmed the judgment of the circuit court. Johnson v. Sonoco Products Co., Op. No. 2006-UP-281 (S.C.Ct.App. filed Sept. 20, 2006). Sonoco unsuccessfully sought rehearing in the Court of Appeals. We subsequently denied Sonoco’s petition for a writ of certiorari. The remittitur was sent to the lower court on June 13, 2007.
Prior to the conclusion of the underlying appeal, Johnson filed a motion to compel payment of the compensation benefits in the circuit court, together with a subsequent motion in the circuit court for sanctions (interest and a ten percent penalty) against Sonoco. Sonoco objected to the jurisdiction of the circuit court on two grounds: (1) the award of workers’ compensation benefits was stayed during the appeal, and (2) absent a remand from the appellate court, the circuit court lacked jurisdiction to consider Johnson’s motions. The circuit court rejected Sonoco’s arguments and awarded relief, calculating Johnson’s entitlement to interest as of the date of the single commissioner’s order, May 29, 2002, and assessing a ten percent penalty. The circuit court’s initial order granting relief was filed December 20, 2006, and an amended order was filed on March 6, 2007, following Sonoco’s motion for reconsideration. Sonoco appealed. Thereafter, as noted above, the underlying appeal became final and the remittitur was sent to the lower court.
Following the circuit court order of March 6, 2007, Sonoco paid Johnson his compensation benefits, but continued with the current appeal challenging the award of interest and ten percent penalty. The appeal is before us pursuant to Rule 204(b), SCACR, certification.
II.
The first issue we must resolve is whether the appeal in the underlying case stayed Sonoco’s responsibility to make weekly compensation payments to Johnson. Rule 225(a), SCACR, provides the general rule that service of a notice of appeal in a civil matter automatically stays matters affected by the appeal. Some of the exceptions to this rule are found in Rule 225(b), which sets forth a non-exhaustive list. Rule 225 expressly provides that exceptions to the general rule extend beyond the list in subsection (b) and are found in statutes, court rules, and case law.
This Court provided such case law when it previously addressed this issue of whether an award of workers’ compensation benefits by the circuit court would be stayed by the service of the notice of appeal in Case v. Hermitage Cotton Mills, 236 S.C. 515, 534, 115 S.E.2d 57, 67-68 (1960). In Hermitage this Court stated:
[I]f the Commission should deny him compensation and upon his appeal the circuit court should reverse the Commission and hold his claim compensable, the weekly payments to be made by the employer pending determination of an appeal from that judgment to the Supreme Court should commence from the date of the circuit court’s judgment and should not be calculated retroactively from the date of the Commission’s decision.
Id. In making this determination, this Court interpreted section 72-356 of the South Carolina Code (1952). Hermitage, 236 S.C. at 534, 115 S.E.2d at 67. This section is substantially similar to section 42-17-60 of the South Carolina Code (Supp. 2007). We hold that the rule in Hermitage is on point. Therefore, when the commission’s denial of benefits is reversed and the award is made by the circuit court, the weekly payments are not stayed by the appeal.[1]
We further note that we have already made such a ruling in this case. In an order issued by this Court on November 14, 2006, this Court granted Sonoco’s motion for an extension of time to file its petition for certiorari, and we specifically stated that the award of benefits to Johnson “is not stayed by the pendency of this matter.” This Court went on to cite section 42-17-60; Rule 225, SCACR;Hermitage, 236 S.C. 515, 115 S.E.2d 57; and McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E.2d 38 (Ct. App. 1984).
We next turn to the authority of the circuit court to compel, in the absence of a remand order, the weekly payments during the pendency of the appeal. The answer is unambiguously provided in Rule 225(a), SCACR, which states, “[t]he lower court . . . retains jurisdiction over matters not affected by the appeal including the authority to enforce matters not stayed by the appeal.” (emphasis added). The circuit court retained authority to compel the payment of weekly benefits, and Sonoco’s arguments to the contrary are without merit. No remand from the appellate court was necessary. Moreover, because the awards of interest and penalty are inextricably linked to Sonoco’s nonpayment of benefits, we follow the rationale of Hermitage and hold that the matters of interest and penalty were not stayed by the appeal.
Sonoco further challenges the authority of the circuit court to award interest and assess the ten percent penalty under section 42-9-90 of the South Carolina Code (1976). Sonoco contends such an award rests exclusively in the Workers’ Compensation Commission. We find this issue is not preserved. The issue first appears in Sonoco’s motion seeking reconsideration of the circuit court’s December 20, 2006 order. An issue may not be raised for the first time in a motion to reconsider. Commercial Credit Loans, Inc. v. Riddle, 334 S.C. 176, 186, 512 S.E.2d 123, 129 (Ct. App. 1999) (“Further, because the transcript of the proceedings below is omitted from the record, it appears the first time Commercial Credit made this argument was in its Rule 59(e) motion for reconsideration. Accordingly, this issue is not properly preserved for our review.”). The matters of interest and the ten percent penalty were squarely before the circuit court, and Sonoco’s pre-hearing written responses to Johnson’s motions did not raise the section 42-9-90 challenge. Moreover, the transcript of the hearing in the circuit court is not included in the record on appeal. Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 132, 470 S.E.2d 373, 376 (1996) (“The appellant has the burden of providing this court with a sufficient record upon which to make a decision.”); Smith v. Ridgeway Chemicals, Inc., 302 S.C. 303, 306, 395 S.E.2d 742, 744 (Ct. App. 1990) (“It is incumbent upon an appellant to present a record sufficient to permit a review of a trial judge’s rulings.”). We therefore affirm the awards of interest and ten percent penalty. Johnson is additionally entitled to interest on the ten percent penalty.
We do agree with Sonoco’s final assignment of error that Johnson is not entitled to interest from the date of the single commissioner’s order. We are guided by the reasoning of Hermitage. 236 S.C. at 534, 115 S.E.2d at 67-68 (“[U]pon his appeal [if] the circuit court should reverse the Commission and hold his claim compensable, the weekly payments to be made by the employer pending determination of an appeal from that judgment to the Supreme Court should commence from the date of the circuit court’s judgment and should not be calculated retroactively from the date of the Commission’s decision.”). This Court in Hermitage cited to section 72-356 of the South Carolina Code (1952) in referencing a thirty-day supersedeas on appeals from an award of benefits. Id.
Section 72-356 is the predecessor to section 42-17-60 of the South Carolina Code (Supp. 2007). The thirty-day time period for appeals remains a part of section 42-17-60, with the provision that “after that time, the employer is required to make weekly payments of compensation and to provide medical treatment ordered . . . .” Because the commission denied Johnson’s claim and the circuit court awarded benefits, we apply this statutory thirty-day supersedeas following the entry of the circuit court order, after which the compensation payments should have been made. There was no legitimate reason to justify or excuse Sonoco’s failure to pay compensation benefits to Johnson during the pendency of the underlying appeal. Johnson is therefore entitled to an award of interest calculated from June 15, 2005, which is thirty days from the award of benefits in the circuit court. We remand to the circuit court for the sole purpose of calculating the interest due Johnson.
III.
The award of workers’ compensation benefits by the circuit court was not stayed by the appeal. Pursuant to Rule 225(a), the circuit court had jurisdiction to compel the payment of benefits, as well as interest and penalty, during the pendency of the appeal. We affirm the circuit court in its entirety, save the effective date of the award of interest. The matter is remanded to the circuit court to calculate the award of interest calculated from June 15, 2005.[2]
AFFIRMED AS MODIFIED; AND REMANDED.
TOAL, C.J., WALLER, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.
[1] We recognize the procedure followed in this case has been statutorily modified. For injuries occurring on or after July 1, 2007, appeals from the Workers’ Compensation Commission go directly from the commission to the Court of Appeals. See Act 111, 2007 S.C. Acts 111.
[2] The principle payment of the ten percent penalty ($20,513) should be made promptly. Moreover, the parties can compute the amount of interest due Johnson, and we urge the parties, through counsel, to do so and bring this unreasonably protracted litigation to an end. The circuit court should not be further burdened with this unnecessary litigation.
Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit 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 what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have 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 at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Marsha Tennant, Petitioner,
v.
Beaufort County School District, Employer, and S.C. School Board Insurance Trust, Carrier, of whom Beaufort County School District is Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Beaufort County
Curtis L. Coltrane, Circuit Court Judge
Opinion No. 26616
Heard January 7, 2009 – Filed March 16, 2009
AFFIRMED
James H. Moss, Esquire and H. Fred Kuhn, both of Moss, Kuhn & Fleming, of Beaufort, for Petitioner.
Kirsten L. Barr, Jamie C. Guerrero, and Kathryn C. Thompson, all of Trask and Howell, of Mt. Pleasant, for Respondent.
CHIEF JUSTICE TOAL: In this workers’ compensation case, the single commissioner denied benefits, and the full commission, the circuit court, and the court of appeals affirmed. Tennant v. Beaufort County Sch. Dist. Op. No. 2007-UP-056 (S.C. Ct. App. filed February 8, 2007). This Court granted a writ of certiorari to review the court of appeals’ decision. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Petitioner Marsha Tennant worked as a special education teacher for thirty years prior to working for Respondent in that same role. In the fall of 2001, after being employed for approximately one year with Respondent, two new aides were assigned to assist Petitioner with her students in the classroom. As the year progressed, Petitioner was concerned that the aides were not performing their job in violation of federal Individualized Education Programs regulations and worried that the aides’ performances would jeopardize the education program. Both Petitioner and the aides complained to the supervisor.
On October 18, 2001, after an argument with the aides, Tennant felt faint and went to the nurse’s office, where the nurse recorded Petitioner’s blood pressure as elevated. Petitioner later returned to the nurse’s office complaining of chest pains and dizziness. The nurse recorded a higher blood pressure and called an ambulance. The emergency room doctor diagnosed Petitioner with a stress reaction.
At the hearing, Petitioner’s family doctor (“Family Doctor”) testified that Petitioner suffered a panic attack that was caused by work conditions and diagnosed Petitioner with “situational depression and panic disorder.” Additionally, Petitioner submitted the deposition testimony of a licensed social worker (“Sociologist”) who began treating Petitioner at her psychotherapy practice after the anxiety attack. Sociologist diagnosed Petitioner with post traumatic stress disorder and continued panic attacks and concluded that Petitioner should not return to work as a special education teacher. Respondent submitted a letter from a psychiatrist (“Psychiatrist”) who evaluated Petitioner. She concluded that Petitioner suffered a single anxiety attack, but that Petitioner did not require additional medical treatment and could return to work.
The single commissioner found that Petitioner failed to prove that the conditions of her employment were either extraordinary or unusual. Additionally, the single commissioner gave greater weight to the testimony of Psychiatrist than to the testimonies of Family Doctor and Sociologist and ruled that Sociologist was not qualified to render an opinion on causation under South Carolina case law. The full commission ruled that Sociologist’s testimony should be made a part of the record, but affirmed the denial of benefits. The circuit court and the court of appeals found that substantial evidence in the record supported a finding that Petitioner did not suffer a compensable injury, and therefore, affirmed the full commission’s decision.
We granted a writ of certiorari to review the court of appeals’ decision, and Petitioner presents the following issue for review:
Did the court of appeals err in affirming the order denying benefits because the full commission’s decision is not support by substantial evidence?
STANDARD OF REVIEW
This Court must affirm the findings of fact made by the full commission if they are supported by substantial evidence. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). 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. Tiller v. Nat’l Health Care Ctr., 334 S.C. 333, 338, 513 S.E.2d 843, 845 (1999).
LAW/ANALYSIS
Petitioner argues that the court of appeals erred in affirming the full commission’s finding that she did not suffer a compensable injury. We disagree.
In order to recover for mental injuries caused solely by emotional stress, or “mental-mental” injuries, the claimant must show that she was exposed to unusual and extraordinary conditions in her employment and that these unusual and extraordinary conditions were the proximate cause of the mental disorder. Powell v. Vulcan Materials Co., 299 S.C. 325, 384 S.E.2d 725 (1989). This standard, also known as the “heart attack standard,” balances the employee’s interests with the employer’s interests and provides a framework which ensures that the claimant shows that she suffered a work-related injury. Requiring a claimant to prove exposure to “unusual or extraordinary” circumstances in a mental-mental injury claim is consistent with the heightened burden required to prove a claim for intentional infliction of emotional distress claims, a cause of action that also allows recovery for mental injuries in the absence of physical injury. See Hasson v. Scalise Builders of South Carolina, 374 S.C. 352, 356, 650 S.E.2d 68, 71 (2007), quoting Ford v. Hutson, 276 S.C. 157, 166, 276 S.E.2d 776, 780 (1981) (recognizing that “where physical harm is lacking, the courts should look initially for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious”).
In the instant case, Petitioner alleges that the aides’ insubordination created the unusual and extraordinary conditions, which caused her panic attack. Petitioner testified that the aides would walk out of the classroom and refused to escort the children to the bathroom and that several of her students regressed in their progress as a result of the aides’ actions. She also testified that she reported her concerns to her supervisor, but the supervisor sided with the aides and would not help her.
We find substantial evidence in the record supports the full commission’s findings. Although the conflict may have been stressful, it was not an unusual or extraordinary circumstance of Petitioner’s employment. Neither the aides nor Petitioner’s supervisor threatened her, and the conflict never involved physical contact. Petitioner admits that a special education teacher is an inherently stressful job, and Social Worker conceded that a panic attack may be triggered absent unusual or extraordinary circumstances. Additionally, Petitioner’s supervisor testified that conflicts like the one between Petitioner and the aides were not unusual. In our view, cases in which the Court has found unusual and extraordinary circumstances that resulted in a mental injury involve much more extreme and severe facts. See Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (finding the combination of death threats, gun incidents with violent drug dealers, high tension confrontations, fear of being uncovered, and loss of security as a police officer constituted unusual or extraordinary conditions of employment when they occur over several months);Stokes v. First Nat. Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 250 (1991) (concluding that the extreme prolonged increase in employee’s work hours, combined with additional job responsibilities, constituted unusual and extraordinary conditions of employment); Powell, 299 S.C. at 328, 384 S.E.2d at 727 (holding that an intense verbal exchange between the employee and the supervisor constituted unusual and extraordinary condition of employee’s work).
Accordingly, we hold that substantial evidence in the record exists to support the commission’s decision that Petitioner failed to meet her burden that she suffered a compensable injury.
CONCLUSION
For the foregoing reasons, we affirm the court of appeals’ decision upholding the denial of benefits.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
David H. Barton, Employee, Claimant,
v.
William Ian Higgs d/b/a Iyanel Enterprises and Total Home Exteriors, Inc., Employers, and Key Risk Insurance and SC Uninsured Employers Fund, Carrier, Defendants,
Of Whom Total Home Exteriors, Inc., Employers, and Key Risk Insurance are the Respondents,
and SC Uninsured Employers Fund is the Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 26594
Heard November 18, 2008 – Filed February 9, 2009
REVERSED
Amy V. Cofield, of Lexington, and Latonya Dilligard Edwards, of Columbia, for Petitioner.
David A. Wilson and Michael A. Farry, both of Horton, Drawdy, Ward & Jenkins, of Greenville, for Respondents.
CHIEF JUSTICE TOAL: In this workers’ compensation case, the court of appeals held that Petitioner South Carolina Uninsured Employers’ Fund (the Fund) was responsible for paying benefits to an injured employee. Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007). We granted a writ of certiorari to review that decision and now reverse.
Factual/Procedural Background
David Barton (Claimant) was employed by William Higgs d/b/a Iyanel Enterprises (Iyanel), which served as the roofing subcontractor for Respondent Total Home Exteriors (Total Home). On November 22, 2003, Claimant sustained a compensable injury when he fell from a roof. At the time of the accident, Iyanel did not have workers’ compensation insurance, and thus, as the higher-tier contractor, Total Home remained liable to pay Claimant benefits. Total Home sought to transfer liability to the Fund pursuant to S.C. Code Ann. § 42-1-415 (Supp. 2007).
At the hearing before the single commissioner, the president of Total Home testified that he received a Certificate of Insurance from Higgs showing that Iyanel had a workers compensation policy in effect from September 13, 2003 through September 13, 2004. The Certificate listed Total Home as the certificate holder and Jackie Perry Insurance Agency (Insurance Company) as the producer, but the Certificate was not signed in the blank listed for “Authorized Representative.” Higgs testified that he paid for the workers’ compensation insurance and that an employee of the Insurance Company issued the Certificate of Insurance. Nonetheless, coverage was never bound, resulting in Iyanel not being insured on the date of the accident.
The single commissioner found that Iyanel had attempted in good faith to obtain workers’ compensation insurance and presented the Certificate of Insurance to Total Home, upon which Total Home relied in good faith. Accordingly, the single commissioner ruled that liability should be transferred to the Fund. The full commission, the circuit court, and the court of appeals affirmed the single commissioner’s decision to transfer liability.
We granted a writ of certiorari and the Fund presents the following issue for review:
Did the court of appeals err in affirming the decision to transfer liability to the Fund pursuant to § 42-1-415?
Standard of Review
When reviewing an appeal from the workers’ compensation commission, the appellate court may not weigh the evidence or substitute its judgment for that of the full commission as to the weight of evidence on questions of fact. Therrell v. Jerry’s Inc., 370 S.C. 22, 26, 633 S.E.2d 893, 894-95 (2006). However, the appellate court may reverse the full commission’s decision if it is based on an error of law. Id. The issue of interpretation of a statute is a question of law for the Court. Catawba Indian Tribe of South Carolina v. State, 372 S.C. 519, 524, 642 S.E.2d 751, 753 (2007).
Law/Analysis
The Fund argues that the court of appeals erred in affirming the decision to transfer liability because the Certificate of Insurance was unsigned. We agree.
Under the Workers’ Compensation Act, a general contractor is considered the “statutory employer” of a subcontractor’s employees and is liable to pay workers’ compensation benefits to the subcontractor’s employee injured on the job. See S.C. Code Ann. § 42-1-410 (2006). Thus, “[t]he employee of the sub-contractor may look to the prime contractor for workers’ compensation benefits without regard to whether the sub-contractor is covered by a workers’ compensation insurance policy.” Freeman Mechanical, Inc. v. J.W. Bateson Co., Inc., 316 S.C. 95, 97, 447 S.E.2d 197, 198 (1994). The purpose of this statute is to protect the employee and assure coverage in the event of an injury.
In 1996, however, the Legislature created a narrow exception to this rule which provides that the general contractor may transfer the responsibility to pay benefits:
[U]pon the submission of documentation to the commission that a contractor or subcontractor has represented himself to a higher tier subcontractor, contractor, or project owner as having workers’ compensation insurance at the time the contractor or subcontractor was engaged to perform work, the higher tier subcontractor, contractor, or project owner must be relieved of any and all liability under this title except as specifically provided in this section.
Section 42-1-415(A). However, to transfer liability to the Fund, the higher-tier contractor “must collect documentation of insurance . . . on a standard form acceptable to the commission.” The workers’ compensation commission has promulgated a regulation providing that a Certificate of Insurance “shall serve as documentation of insurance” and that the Certificate “must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.” S.C. Code Reg. 67-415 (Supp. 2007). In other words, liability may be transferred from the higher tier contractor to the Fund only after the higher tier contractor has properly documented the subcontractor’s claim that it retains workers’ compensation insurance. This statutory scheme provides an ultimate safety net for general contractors against a subcontractor’s act of fraud.
In the instant case, by failing to collect a signed Certificate of Insurance form, Total Home failed to meet the requirement as set forth in the regulation. Even assuming Iyanel was not acting fraudulently in submitting the unsigned form, Total Home could have easily investigated the absence of the signature and determined that Iyanel did not have a valid policy. In our view, public funds should not be expended where Respondent could have discovered the mistake by acting in accordance with the regulations.
We recognize that the full commission found that the form was a valid documentation and, as the agency charged with administering the Workers’ Compensation Act, this decision should be given great deference. See Dunton v. S.C. Bd. of Exam’rs in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987) (recognizing that the construction of a statute by the agency charged with its administration will be accorded the most respectful consideration). However, we hold that the full commission’s decision should not be upheld because the interpretation is clearly contrary to its own regulation. See Brown v. South Carolina Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002) (holding that while the Court typically defers to an agency’s construction of its own regulation, where the plain language of the regulation is contrary to the agency’s interpretation, the Court will reject the interpretation).
Conclusion
For the foregoing reasons, we reverse the decision of the court of appeals and hold that Total Home may not transfer liability to the Fund.
KITTREDGE, J., and Acting Justices James E. Moore and Donna S. Strom, concur. WALLER, J., dissenting in a separate opinion.
JUSTICE WALLER: I respectfully dissent. In my opinion, the Court of Appeals correctly held that respondent Total Home “met all of the statutory requirements to transfer liability.” Barton v. Higgs, 372 S.C. 109, 117, 641 S.E.2d 39, 43 (Ct. App. 2007). Accordingly, I would affirm in result.
S.C. Code Ann. § 42-1-415 provides that when a subcontractor “has represented himself” to a general contractor as having workers’ compensation insurance at the time the subcontractor “was engaged to perform work,” the general contractor “must be relieved of any and all liability.” The statute further states that the general contractor “must collect documentation of insurance … on a standard form acceptable to the commission.” S.C. Code Ann. § 42-1-415 (Supp. 2008).
A review of some additional facts is in order. The president for Total Home testified that he would not have given Iyanel Enterprises a contract without obtaining a certificate of workers’ compensation insurance. Likewise, the testimony of William Higgs confirmed that before Iyanel could work as a subcontractor on jobs for Total Home, Total Home required him to get a certificate of insurance. According to Higgs, he went to the Jackie Perry Insurance Agency, paid his money for the policy, and obtained the certificate. Despite the issuance of the certificate by the Perry Agency, the coverage was never bound, resulting in Iyanel not being insured on the date of Claimant’s accident.
The record reflects that the Perry Agency had employed someone who issued certificates of insurance without the coverage being bound. Therefore, the only fraud that seems to have occurred in this case is by an employee of the insurance agency, not by the subcontractor. Although the majority concedes that section 42-1-415 is designed to protect a general contractor from fraud, the end result of the majority’s reasoning is that Total Home becomes a victim of fraud simply because it was not committed by the subcontractor.
More importantly, however, the majority seems to gloss over the fact that the express requirements of the statute clearly were met in the instant case. Instead, the majority opinion focuses its attention on the regulation’s requirements.[1] This runs contrary to settled precedent.
Although regulations authorized by the Legislature generally have the force of law, a regulation may not alter or add to a statute. Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995); Banks v. Batesburg Hauling Co., 24 S.E.2d 496, 499 (1943); see also Society of Prof’l Journalists v. Sexton, 283 S.C. 563, 567, 324 S.E.2d 313, 315 (1984) (“Although a regulation has the force of law, it must fall when it alters or adds to a statute.”).
The Goodman case is instructive. Goodman involved S.C. Code § 42-17-50, the workers’ compensation statute which allows “an application for review” of the single commissioner’s order by the Full Commission. The Commission promulgated Regulation 67-701 which requires that a specific form be filed (Form 30). The petitioner in Goodman did not file a Form 30, but instead wrote the Commission a letter “expressing his desire to appeal.” Goodman, 318 S.C. at 490, 458 S.E.2d at 532. On direct appeal, the Court of Appeals found the petitioner’s letter did not substantially comply with section 42-17-50.
On certiorari, this Court reversed. The Goodman court stated that Regulation 67-701 “adds the requirement of applying for review with a particular form, thereby adding to the statute. Insofar as Reg. 67-701 increases the threshold requirements of section 42-17-50, the specifications set forth in the statute must prevail.” Id. at 490-491, 458 S.E.2d at 532 (emphasis added). The Court in Goodman therefore held that that petitioner’s letter constituted substantial compliance with section 42-17-50. Id. at 491, 458 S.E.2d at 532.
The instant case is analogous to Goodman in that there was substantial compliance with the applicable statute. Total Home requested and received documentation of Iyanel’s insurance on a form authorized by the Commission. All the substantive parts of the form were filled in – it listed Higgs as being insured with a workers’ compensation policy (including a policy number and coverage dates), and also listed Total Home as the certificate holder.
The only thing missing was a signature. In my opinion, requiring such strict compliance with the regulation would only serve to frustrate legislative intent.[2] The obvious purpose of section 42-1-415 is to encourage a higher tier contractor to require proof that its subcontractors carry workers’ compensation insurance. Therefore, if the higher tier contractor substantially complies with the document collection requirement, it should not be ultimately liable when the subcontractor turns out to not actually be insured. See§42-1-415; Goodman, supra.
In addition, nowhere in the statute is there a requirement that the higher tier contractor verify the authenticity of the documentation of insurance. Nevertheless, the majority suggests that Total Home “could have easily investigated the absence of the signature and determined that Iyanel did not have a valid policy.” First, I disagree that section 42-1-415 imposes this burden on the general contractor. Moreover, I also disagree that under the facts of this case, any such investigation would have uncovered the fraud apparently committed by a rogue employee of the insurance agency.[3]
Put simply, the majority’s focus on the absence of a signature literally “elevat[es] form over substance.” South Carolina Second Injury Fund v. American Yard Prods., 330 S.C. 20, 24, 496 S.E.2d 862, 864 (1998). At the very least, the majority has elevated regulation over statute, and in my opinion, this runs contrary to well-settled law. See, e.g., Goodman, supra; Society of Prof’l Journalists v. Sexton, supra.
In sum, because I believe the majority opinion overlooks precedent which stands for the principle that a regulation should not trump the language and intent of the statute, I respectfully dissent.
[1] The Fund’s sole argument, with which the majority agrees, is that because the form was unsigned, it did not meet the requirements of the applicable regulation. Regulation 67-415 provides the following information about the term “documentation of insurance” used in the statute:
For purposes of Section 42-1-415, the ACORD Form 25-S, Certificate of Insurance, as published by the ACORD Corporation and as issued by the insurance carrier for the insured, shall serve as documentation of insurance. The Certificate of Insurance must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.
S.C. Code Reg. 67-415(A) (Supp. 2008). The ACORD Form 25-S is a standard insurance industry form.
[2] See, e.g., South Carolina Second Injury Fund v. American Yard Prods., 330 S.C. 20, 22, 496 S.E.2d 862, 863 (1998) (this Court’s primary function when interpreting a statute is to ascertain and give effect to the intent of the legislature).
[3] For example, if Total Home had called the Perry Agency to verify the unsigned documentation, it is quite possible that the employee who was not binding the coverage could have simply lied to cover up his/her own fraudulent activity.
