THE STATE OF SOUTH CAROLINA

In The Supreme Court

Paula Russell, Claimant, Petitioner,

v.

Wal-Mart Stores, Inc., Employer, and Illinois National 

Insurance Company, Carrier, Respondents.

Appellate Case No. 2018-000354

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from the Workers' Compensation Commission

Opinion No. 27875

Heard February 21, 2019 – Filed April 3, 2019

REVERSED

C. Daniel Vega, of Chappell Smith & Arden, P.A., of 

Columbia, for Petitioner.

Johnnie W. Baxley III, of Willson Jones Carter & Baxley, 

of Mount Pleasant, for Respondents. 

JUSTICE FEW: An appellate panel of the workers' compensation commission 

remanded Paula Russell's change of condition claim to a single commissioner for 

what would be a third ruling on the same claim. Russell appealed the remand order 

to the court of appeals, which dismissed the appeal on the ground the order was not

a final decision, and thus not immediately appealable. We find the remand order is 

immediately appealable because the commission's unwarranted delay in making a 
final decision requires immediate review to avoid leaving Russell with no adequate 

remedy on an appeal from a final decision. We reverse the court of appeals' order 

dismissing the appeal, reverse the appellate panel's remand order, and remand to any 

appellate panel of the commission for an immediate and final review of the original 

commissioner's decision. 

I. Facts and Procedural History

Russell injured her back in 2009 while working at a Wal-Mart store in Conway. The 

commission found Russell suffered a 7% permanent partial disability, and awarded 

her twenty-one weeks of temporary total disability compensation. In 2011, Russell 

requested review of her award, claiming there had been a "change of condition 

caused by the original injury" pursuant to subsection 42-17-90(A) of the South 

Carolina Code (2015). 

A single commissioner conducted a full evidentiary hearing on the 2011 claim on 

February 11, 2013. In a detailed order dated August 5, 2013, the commissioner 

found Russell had proven a change of condition. The commissioner ordered WalMart to pay temporary total disability benefits beyond the original twenty-one weeks 

"through the present date and continuing." The commissioner based the award on 

Russell's testimony, and the testimony and medical records of two treating 

physicians. The commissioner explained in her order she relied on testimony of the 

two physicians who described a "physical, anatomical change" and an "increase in 

the size of the disc protrusion," demonstrated by an "objective" comparison of MRI 

images taken before and after the award. 

An appellate panel reversed the commissioner. The panel dismissed Russell's 

testimony on the ground "it is conclusory and self-serving." The panel discounted 

the testimony and medical records of the two physicians, stating, "Both [physicians] 

ultimately testified there was no objective or significant radiographical difference to 

be noted in the MRI scans done before and after the original award." In an order 

dated January 30, 2014, the panel found Russell "failed to prove by a preponderance

of the evidence . . . [she] has sustained a change of condition." 

Russell appealed to the court of appeals. The court of appeals found the appellate 

panel "erred in requiring a change of condition to be established by objective 

evidence." Russell v. Wal-Mart Stores, Inc., 415 S.C. 395, 398, 782 S.E.2d 753, 755 

(Ct. App. 2016). The court of appeals reversed the panel and remanded "to the 

Commission," 415 S.C. at 401, 782 S.E.2d at 757, with no express remand 

instructions.
The court of appeals remitted the case to the commission on May 3, 2016. On March 

20, 2017, a second commissioner filed a detailed order finding Russell "met her 

burden of proving a change of condition." On September 15, 2017, however, a new

appellate panel vacated the second commissioner's order and remanded for what 

would be a third commissioner to make a third ruling. The panel stated, "At the 

remand hearing, the Single Commissioner shall conduct a full evidentiary hearing 

and allow both parties to submit testimony, medical records, and other additional 

evidence for consideration as to the issue of any award of benefits under the Act if 

the change of condition is found to be compensable." 

Russell appealed the September 15, 2017 order to the court of appeals. In an 

unpublished decision, the court of appeals found the appellate panel's remand order 

was not immediately appealable and dismissed the appeal. Russell filed a petition 

for a writ of certiorari with this Court. She argued the commission's repeated 

remands for new hearings created a "perpetual"1 "cycle of orders and appeals such 

that [she] will be deprived of an adequate remedy." We granted the petition, and 

now reverse. 

II. Analysis

One primary goal of the Workers' Compensation Act is to provide quick and efficient 

resolution of work-related injury claims so neither employers nor employees become

bogged down in complicated and protracted litigation. See Peay v. U.S. Silica Co.,

313 S.C. 91, 94, 437 S.E.2d 64, 65 (1993) (recognizing "Workers' compensation 

laws were intended by the Legislature to . . . provid[e] sure, swift recovery for 

workplace injuries regardless of fault"). This Court recently emphasized the goal, 

stating, "The Workers' Compensation Act was designed to supplant tort law by 

providing a no-fault system focusing on quick recovery, relatively ascertainable 

awards, and limited litigation." Nicholson v. S.C. Dep't of Soc. Servs., 411 S.C. 381, 

389, 769 S.E.2d 1, 5 (2015) (citing Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 

115, 580 S.E.2d 100, 107 (2003)).2

 The court of appeals addressed this goal in 

 1 Russell did not use the word "perpetual" in her petition for a writ of certiorari. She 

did, however, use it in her petition for rehearing to the court of appeals. As we will 

explain, the term is appropriate.

2 See also 99 C.J.S. Workers' Compensation § 16 (2013) (stating "considerations 

leading to the enactment of the compensation legislation [include] a desire to provide 

a remedy or form of relief to, or settlement of the claims of, injured workers or their 
another case in which the commission unreasonably delayed addressing the merits 

of claims, stating, "If the claimants were entitled to benefits, they were entitled to 

receive them many years ago. If the claimants were not entitled to benefits, [the 

employers] were entitled to have the claims denied many years ago." Ex parte S.C. 

Prop. & Cas. Ins. Guar. Ass'n, 411 S.C. 501, 506, 768 S.E.2d 670, 673 (Ct. App. 

2015).

The Administrative Procedures Act limits the role of the judicial branch of 

government in meeting the goal of quick decisions in limited litigation by restricting 

appeals to final decisions in most cases. See S.C. Code Ann. § 1-23-380 (Supp. 

2018) ("A party . . . who is aggrieved by a final decision . . . is entitled to judicial 

review . . . ."); Spalt v. S.C. Dep't of Motor Vehicles, 423 S.C. 576, 583, 816 S.E.2d 

579, 583 (2018) (stating "the Administrative Procedures Act permits an appeal only 

from 'a final decision . . .'" (quoting Charlotte-Mecklenburg Hosp. Auth. v. S.C. 

Dep't of Health & Envtl. Control, 387 S.C. 265, 266, 692 S.E.2d 894 (2010))).

Nevertheless, this Court has struggled to foster quick and efficient resolution of 

work-related injury claims by discouraging the commission from making repeated, 

unnecessary remands. In Bone v. U.S. Food Service, we cited "lingering confusion 

in this area [of immediate appealability] that has arisen after the passage of the 

Administrative Procedures Act" as a basis for granting certiorari to review the court 

of appeals' dismissal of an interlocutory appeal. 399 S.C. 566, 570, 733 S.E.2d 200, 

202 (2012), adhered to on reh'g, 404 S.C. 67, 744 S.E.2d 552 (2013). Ultimately, 

we denied an immediate appeal and permitted a remand for a new hearing, 404 S.C. 

at 84, 744 S.E.2d at 562, but we highlighted the prejudice employers and employees 

may suffer from delaying appeal of interlocutory orders until after final judgment,

404 S.C. at 82-83, 744 S.E.2d at 561. The dissent in Bone addressed the problem

even more directly. Justice Hearn wrote, "Moreover, the interests of judicial 

economy demand a rejection of the majority's view. Taken to its logical conclusion, 

the majority's position could have cases trapped in a cycle of remands for years." 

404 S.C. at 92, 744 S.E.2d at 566 (Hearn, J., dissenting).

 

dependents that is prompt and speedy" (footnote omitted)); 82 Am. Jur.2d Workers' 

Compensation § 12 (2013) ("A state's workers' compensation act . . . provid[es] 

injured employees with an efficient system of rights, remedies, and procedures with 

the goal of giving them prompt relief. Among the purposes of a workers' 

compensation act [is] . . . providing prompt justice for injured workers and 

preventing the delays that might arise from protracted litigation." (footnotes 

omitted)).
In Hilton v. Flakeboard America Limited, 418 S.C. 245, 791 S.E.2d 719 (2016), we 

again faced the prejudice workers' compensation litigants may encounter when the 

commission orders repeated remands, and appeal must be delayed until a final 

decision. We stated, "Under these unique circumstances where the Commission has 

ordered the relitigation of the entire dispute without regard to the matters raised by 

the appealing party, we find that requiring Hilton to wait until the final agency 

decision to appeal would not provide him an adequate remedy." 418 S.C. at 250, 

791 S.E.2d at 722; see § 1-23-380 ("A preliminary, procedural, or intermediate 

agency action or ruling is immediately reviewable if review of the final agency 

decision would not provide an adequate remedy."). We foresaw in Hilton precisely 

what has happened in this case, that "a party could face the possibility of repeated 

unexplained 'do overs' before a final decision of the Commission." 418 S.C. at 252, 

791 S.E.2d at 723. In Hilton, we granted an immediate appeal despite the fact the 

commission's order was not a final decision. Id.; see also 418 S.C. at 253, 791 S.E.2d 

at 723 (Kittredge, J., concurring) (contending "the petitioners in Bone made the 

identical argument . . . , that review of a final agency decision would not provide an 

adequate remedy").

If this Court's role in achieving this goal of the Workers' Compensation Act is 

limited, however, the commission's role is primary. See James v. Anne's Inc., 390 

S.C. 188, 201-02, 701 S.E.2d 730, 737 (2010) (stating the "'workers' compensation 

commission . . . is, in the first instance, responsible for effectuating the purposes of 

the workers' compensation act by administering, enforcing, and construing its 

provisions in order to secure its humane objectives.'" (quoting 100 C.J.S. Workers' 

Compensation § 706 (2000))). The Workers' Compensation Act sets forth the 

procedure the commission should follow to fulfill its purpose. Subsection 42-17-

40(A) of the South Carolina Code (2015) provides, "The commission or any of its 

members shall hear the parties at issue and their representatives and witnesses and 

shall determine the dispute in a summary manner." Section 42-17-50 of the South 

Carolina Code (2015) provides an "application for review" by an appellate panel 

must be made "within fourteen days," in which case an appellate panel may, "if good 

grounds be shown therefor, reconsider the evidence, receive further evidence, rehear 

the parties or their representatives and, if proper, amend the award." 

In most instances, therefore, a claim filed with the commission will be assigned to 

one commissioner who must promptly conduct a hearing and "determine the dispute 

in a summary manner." § 42-17-40(A). If the commissioner's decision is appealed, 

an appellate panel must promptly hear the appeal, and "if proper, amend the award." 

§ 42-17-50. In all but rare cases, the appellate panel should proceed promptly to 

make a final decision without the necessity of any remand. When the commission 
follows this procedure, it will have fulfilled the legislatively set goal to "provide[] a 

. . . system focusing on quick recovery, relatively ascertainable awards, and limited 

litigation." Nicholson, 411 S.C. at 389, 769 S.E.2d at 5. 

In this case, however, the commission's unnecessary delays and repeated remands 

over the almost eight years since Russell filed her change of condition claim

frustrated the goals of the Workers' Compensation Act. As we will explain, each of 

the remands was unnecessary—particularly the remand order on appeal—and thus 

contributed to the commission's failure to make a final decision in a timely manner.

After the first appellate panel reversed the first commissioner, the court of appeals 

reversed. Russell, 415 S.C. at 397, 782 S.E.2d at 754. The focus of the court of 

appeals was the error of requiring that only objective evidence may support the 

claim. See 415 S.C. at 398, 782 S.E.2d at 755 ("Russell argues the Commission 

erred in requiring a change of condition to be established by objective evidence. We 

agree."). That was an error only in the appellate panel's review of the first 

commissioner's decision. In fact, as we previously explained, the first commissioner 

specifically relied on Russell's subjective testimony, and on the subjective 

impressions of the two physicians, in addition to the objective MRI scans. While 

the court of appeals did not provide the commission with specific remand 

instructions, the commission should have been able to determine that its error was 

in the appellate panel's review of the commissioner—not in the work of the 

commissioner. It was completely unnecessary, therefore, for the commission to 

require the case be reheard by a second commissioner. Rather, given the clear 

description of the error committed by the appellate panel in reversing the original 

commissioner, the only task for the commission after the court of appeals' decision 

was to complete a renewed review of the original commissioner's order under proper 

principles of law. 

It was also completely unnecessary for the second appellate panel to remand to a 

third commissioner after the second commissioner reviewed the evidence and filed 

a second detailed order. The court of appeals' 2016 opinion required only a new 

review, not a new hearing. Even before the second commissioner ruled, counsel for 

Wal-Mart specifically argued there should be no new hearing. In an email to the 

commission shortly after the court of appeals remitted the case in May 2016—nine 

months before the second commissioner's March 2017 order—counsel for Wal-Mart 

wrote,

Based upon the hearing notice that I have received, it 

appears as though this matter has been set for a de novo 
hearing before the single commissioner. I believe this to 

be in error based upon the remand from the . . . court of 

appeals. . . . There is nothing in the remand . . . which 

indicates that a new hearing should be held and that new 

evidence should be taken on the claim; instead, the 

commission is simply supposed to reconsider the existing 

evidence and issue new factual findings in accordance 

with the legal issues raised by the court of appeals. I 

believe that having a new hearing . . . is improper from a 

legal and procedural perspective.

Counsel for Wal-Mart continued, specifically raising the concern we foresaw in 

Hilton and upon which we now reverse,

I am surprised that this matter was not considered by the 

full commission and that new factual findings were not 

issued in accordance with the directives of the court of 

appeals. Any new factual findings coming from a single 

commissioner will simply necessitate more appeals and 

more litigation. . . . I certainly don't see any basis for a de 

novo hearing or consideration of new evidence; the 

remand from the court of appeals simply directs the 

commission to reconsider the existing evidence in light of 

[the court's] legal determination.

Nevertheless, despite the fact counsel for Wal-Mart specifically asked there not be 

a de novo hearing, despite the fact the issue of a de novo hearing was not raised by 

either side after the second commissioner's order, despite the fact almost six years 

had elapsed since Russell's claim for a change of condition was filed, despite the 

existence of two detailed single commissioner orders awarding Russell additional 

benefits, the appellate panel remanded to a third commissioner for a third hearing, 

specifically requiring the very thing the party appealing to it (Wal-Mart) had 

specifically asked not to have—a new hearing.

In summary, Russell filed her claim for an increase in benefits due to a change of

condition in 2011. In 2013, a commissioner found she proved her condition had

changed for the worse. As of the writing of this opinion—nearly eight years after 

Russell filed her claim—Russell has not received any additional benefits, despite 

two commissioners finding she was entitled to them. Cf. Rose v. JJS Trucking, LLC, 

411 S.C. 366, 369, 768 S.E.2d 412, 413 (Ct. App. 2015) (finding an interlocutory 
order not immediately appealable under the "adequate remedy" provision when the 

only prejudice was "to delay the payment of money" between insurance providers). 

If Russell is entitled to additional benefits, she was entitled to receive them many 

years ago. If she is not entitled to additional benefits, Wal-Mart was entitled to have 

her claim denied many years ago. S.C. Prop. & Cas. Ins. Guar. Ass'n, 411 S.C. at

506, 768 S.E.2d at 673. The commission failed to fulfill its responsibility under the 

Workers' Compensation Act to promptly decide this case without protracted 

litigation. 

III. Conclusion 

We find the commission's unreasonable delay in making a final decision leaves 

Russell without an adequate remedy on appeal from a final decision under section 

1-23-380. Therefore, we find the appellate panel's remand order is immediately 

appealable. We REVERSE the court of appeals' dismissal, REVERSE the order 

remanding to a single commissioner, and REMAND to any appellate panel for 

immediate and final review of the original commissioner's August 5, 2013 order in 

accordance with the 2016 holding of the court of appeals. 

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.