Chapter 12 Appeals

• Library: The Law of Workers’ Compensation Insurance in South Carolina (SCBar) (2019 Ed.)

Chapter 12 Appeals

I. General

What follows is an in-depth look at appeals from the Hearing Commissioner's decision to the Appellate Panel; to the circuit court; to the court of appeals; and to the Supreme Court.

Section 42-17-50 of the Act provides:

If an application for review is made to the Commission within fourteen days from the date when notice of the award shall have been given, the Commission shall review the award and, if good grounds be shown therefore, reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award.

Each application for Commission review must be accompanied by a fee equal to that charged in Circuit Court for filing a summons and complaint in order to defray the cost of the review. If the Commission determines at the conclusion of the review that the appeal was without merit, it may charge in its sole discretion, the appellant an additional fee not to exceed two hundred fifty dollars.

The parties are required to exhaust their administrative remedy by appeal to the Appellate Panel.¹ An appeal from a decision of the Hearing Commissioner cannot be taken directly to circuit court without first being reviewed by the Appellate Panel.² The mechanism for perfecting the appeal to the Appellate Panel is explained in Article 7 of the Commission's Regulations.

A Form 30, Request for Commission Review, is a form much akin to a notice of intent to appeal; however, it must be accompanied by the questions presented (exceptions). All findings of fact and conclusions of law by the hearing commissioner become and are the law of the case, except those within the scope of the exception and the notice given to the parties.³

The period in which to appeal is 14 days from the date "notice of the award shall have been given."⁴ That date is determined by reference to Regulation 67-213. This Regulation provides that service may be by either certified mail or first-class mail.⁵ When an order is served by first-class mail, five days are added to the date of mailing.⁶ Thus, the period in which to appeal terminates on the 19^th day from the date the order indicates it was mailed by first-class mail. Alternatively, the date of service of an order delivered by certified mail is the date of the addressee's receipt as indicated by the certified mail return receipt.

The Form 30 must be completed in full referencing the Workers' Compensation Commission file number; it must indicate whether oral argument is requested; and it must be accompanied by proof of service on opposing counsel. The filing fee should be attached to the form and is presently in the amount of $150. Failure to timely file a Form 30 is a jurisdictional defect. The 14-day period referenced in Section 42-17-50 cannot be extended by agreement, consent or otherwise.

In Matute v. Palmetto Health Baptist,⁷employer claimed it did not receive Order mailed via first-class mail on Sept. 24, 2008, according to certificate of service, until employer inquired of the hearing commissioner regarding status of same on Oct. 24, 2008. The Order was then faxed to employer which filed appeal four days after receipt pursuant to Regulation 67-701. The appeal was then administratively dismissed because it was outside the 14-day appeal period prescribed by Regulation 67-701. Employer appealed, and the Appellate Panel of the Workers' Compensation (six-member Appellate Panel) found good cause existed to reinstate the appeal pursuant to Regulation 67-705(H)(4). The court of appeals found the Appellate Panel did not abuse its discretion.

Conversely, in Allison,⁸ the Supreme Court confirmed that the Appellate Panel lacked jurisdiction to even hear a workers' compensation appeal by claimant when it was not filed until two days after the 14-day jurisdictional statutory appeal deadline imposed by Section 42-17-50 and Regulation 67-701. The court held the full Workers' Compensation Commission lacks the authority to extend the 14 days permitted for the filing of an appeal from the decision of a hearing commissioner. Finally, the court took the opportunity to clarify the difference between appellate jurisdiction rather than subject matter jurisdiction. The court noted that a court's or administrative agency's subject matter jurisdiction is determined by whether it has the authority to hear the type of case in question; whereas, the question of compliance with rules, regulations and statutes governing an appeal is one of appellate jurisdiction, thereby overruling several prior decisions to the extent they posed the question of an executive agency's authority to hear an appeal as one of subject matter jurisdiction.

The questions presented should encompass all exceptions to the hearing commissioner's decision which a party intends to argue before the Appellate Panel. Grounds not specified in a question presented cannot be considered by the Appellate Panel. Further, the questions presented must be specific. For example, in Jones v. Anderson Cotton Mills,⁹ the court held that an exception stating: "Error on the part of the hearing commissioner in holding and finding that claimant was entitled to an award" was not sufficient to include an objection by reason of the statute of limitations.

Exceptions before the Workers' Compensation Commission are governed by Regulation 67-701A(3) which provides:

The grounds for appeal must be set out in detail on the Form 30 in the form of questions presented.
(a) Each question presented must be concise and concern one finding of fact, conclusion of law, or other proposition the appellant believes is an error.
(b) References to evidence must be by title and exhibit number.

The Workers' Compensation Act provision for review by the Appellate Panel of award by the hearing commissioner cannot be construed to authorize the Commission to determine questions of fact and law not germane to the questions stated in the Notice of Appeal, since such procedure would be violative of "due process of law" and contrary to the orderly procedure and administration of justice. All findings of fact and law by the Hearing Commissioner become the "law of the case" except those within the scope of an exception.¹⁰ In Hudson ex rel. Hudson v. Lancaster Convalescent Ctr.,¹¹ the South Carolina Supreme Court held an issue was unpreserved because the employer and carrier failed to raise the issue to the Appellate Panel, because they previously appealed the order but later withdrew their appeal. The court held under the law of the case doctrine, a party is precluded from re-litigating issues decided in a lower court order, when the party voluntarily abandons its appeal of that order.

While the Commission cannot make a rule inconsistent with Title 42 for carrying out the provisions of the Workers' Compensation Act, the former Appeals Rule, Regulation 67-16, was deemed a valid exercise of statutory power.¹² The general rule is that an assignment of errors on appeal is a specification of the alleged errors committed by the trial judge or other lower court (i.e., Workers' Compensation Commission as trier of fact) and assigned or designated by the party complaining of them as a grounds for reversal on review. The object of assignment of errors is to point out specifically what is relied on as error. The assignment should clearly and distinctly recite all the errors relied on for a reversal of the case so that the opposite party may know what questions are to be raised in the appellate court and may not be subject to the danger of having new questions sprung at or just before the hearing.¹³ Further discussion of properly drawn exceptions and the result of defective exceptions are discussed below.

After the Form 30 and exceptions are prepared, filed, and served upon opposing counsel, the Commission will process the case and set it before the Appellate Panel. Appellate Panel review may be conducted by a six- or three-member panel. The Commission will serve each party a Form 31, Notice of Review, at least 30 days before the date of the review hearing. The Form 31 will state the date, place, time, purpose of the review hearing, and the filing date for the appellant's brief. The appellant must file a brief according to Regulations 67- 205 and 67-705 on or before the date stated on the Form 31.¹⁴ Each brief must include a statement of the case, questions presented, argument and conclusion.¹⁵ The date the appellant serves its brief determines the date on which the respondent's brief is due.¹⁶ Regulation 705 provides the respondent may file a brief and proof of service on the opposing party with the judicial department within 15 days of service of the appellant's brief. The appellant may reply within ten days of service of the respondent's brief but no further briefs are permitted.

Each party must file the original and three copies of a brief when the appearance is before a three-member Commission panel and the original and six copies of a brief when the appearance is before a six-member Commission review panel. The Form 31, Notice of Review, will indicate whether the case is being heard by a three- or six-member review panel.

With the consent of the opposing party, the time for filing the appellant's brief may be extended if a letter acknowledging that agreement is filed with the Commission on or before the original filing date. The party extending the time for filing a brief is required to file with the judicial department a copy of the agreement. The agreement must state the date the brief is due. If an appellant fails to file a brief on or before the date stated on the Form 31, or by the date stated in an agreement to extend, the case will be removed from the hearing docket and administratively dismissed. A motion to reinstate must be filed in order to seek reinstatement based on good cause. The motion will be heard by the Appellate Panel without oral argument or appearance of the parties.¹⁷

In extraordinary cases, the Appellate Panel may...