THE STATE OF SOUTH C AROLINA 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

A ppeal f rom the Workers' Compensation Commission

Op inion No. 27875

Heard February 21, 2019

– Filed April 3, 2019

RE VERSED

C. Daniel Vega, of Chappell Smith & Arden

, P.A., of Columbia, for Petitioner.

Johnnie W. Baxley III, of Will s on Jones Carter & Baxley, of Mount Pleasant, for Respondent s.

JUSTICE FEW: A n 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 t he 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 beca use the commission's unwarranted delay in making afinal 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 i njured 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. I n a detailed order dated August 5, 2013, the commis sioner

found Russell had proven a c hange of condition. The commissioner ordered Wal

Mart 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 comm issioner 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 a n "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 [physician s] 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 chan g e 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 remitte d the case to the commission on May 3, 2016. On March 20, 201 7, a second commissioner filed a detailed order finding Russell "met her burden of proving a change of condition. " On September 15, 2017, h owever, 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 submi t 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 ap peals. 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 repe ated 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, "T he 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 T he 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 theira nother 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, t his 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 Serv ice

, 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, 5 70, 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 direct ly

. 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).

depen dents that is prompt and speedy" (footnote omitted)); 82 Am. Jur.2d Workers' Compensation § 12 ( 2013 ) (" A state's workers' compensatio n act .

. . provid[es] injured employees with an efficient system of rights, remedies, and procedure s with the goal of giving them prompt relief. Among the purposes of a wo rkers' compensation act [is] .

. . providing prompt justice for injured workers and preventing the delays that might ar ise from protracted litigation." (footnotes omitted)).In Hilton v. Flakeboard Ame rica L imi t e d , 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 poss ibility 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 , w e granted an immediate appeal despite the fact the

commission's order was not a final decision

. Id. ; s ee 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 revi ew of a final agency decision would not provide an adequate remedy").

If this Cou rt's role in achieving th is 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) provi des, "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." S ection 42

- 17

- 5 0 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 a ny remand. When the commissionfollows this procedure, it will have ful filled 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, howe ver, the commission 's unnecessary delays and repeated remands over the almost eight years since Russell filed her change of condition claim

frustrated the goal s of the Workers' Compensation A ct. As we will explain, each of

the remands was unnecessary

— part icularly 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, 78 2 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 relie d 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 provi de 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, fo r 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 re versing 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 th e 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, c ounsel for

Wal

- Mart specifically argued there should be no new hearing. In an ema il to the commission shortly after the court of appeals remitted the case i n 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 novohearing before the single commissioner. I believe this to be in error based upon the remand from the .

. . court of appeals.

. . . There is no thing 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 r everse,

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 neces sitate 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, despi te 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 i n 2011. I n 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

. C f. Rose v. JJS Trucking, LLC

, 411 S.C. 366, 369, 768 S.E.2d 412, 413 (Ct. App. 2015) (finding an interlocutoryorder 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 th is case without protracted litigation.

III. Conclusion

We find the c ommission's unreasonable delay in making a final decision leaves Russell without an adequat e remedy on appeal from a final decision under section

1

- 23

- 380

. T herefore, we find the appellate panel's remand order is immediately appealable. We REVERSE the co urt 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.