THE STATE OF SOUTH CAROLINA In The Supreme Court

Thomas Chad Hilton, C laimant, Petitioner,

v.

Flakeboard America Limite d, Employer, and Liberty Mutual Insurance Compa ny, Carrier, Defendants, Respondents.

Appellate Case No. 2015-000493

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from the South Carolina Workers' Compensation
Commission

Opinion No. 27670 Heard January 13, 2016 – Filed October 12, 2016

VACATED AND REMANDED

Andrew Nathan Safran, of Columbia, for Petitioner.

Lawson Brenn Watson and Ian Charles Gohean, both of Willson Jones Carter & Baxley, P.A., of Greenville, for Respondents.

Gary Christmas, of Howell and Christmas, of Mt. Pleasant; Stephen Samuels, of Samuels Law Firm, ofColumbia; Michelle Power s, of Powers Law, of Greenwood; Ronald J. Jeba ily and Suzanne H. Jebaily, both of Jebaily Law Firm, of Florence; Andrea Roche, of Mickle and Bass, of Columb ia; John S. Nichols and Blake A. Hewitt, both of Bluestein Nichols Thompson and Delgado, of Columbia; Mary E. Jordan, of Hilton Head Island; David Pearlm an, of The Steinberg Law Firm, of Charleston; and Linda McKenzie, of Bowen McKenzie Bowen, of Greenville , all for Amicus Curiae, Injured Workers' Advocates.

CHIEF JUSTICE PLEICONES: We granted certiorari to review an order of the Court of Appeals dismissing Pe titioner Thomas Hilton's appeal of an admittedly interlocutory order of the South Carolina Workers' Compensation Commission's Appellate Panel (the Commission). Hilton v. Flakeboard America Ltd. , S.C. Ct. App. Order dated Sept. 19, 2014. Hilton contends the Commission's interlocutory order vacating and remanding the Workers' Compensation Commissi on's single commissioner's (single commissi oner) order is immediately appea lable pursuant to

S.C. Code Ann. § 1-23-380(A) ( Supp. 2015). Section 1-23-380(A) states, in relevant part, that "a prelimin ary, procedural, or intermediate agency action or ruling is immediately reviewable i f review of the final agency decision would not provide an adequate remedy." W e agree, under these unusual fac ts, that review of the final agency decision would not provide Hilton with an adeq uate remedy, and
he is therefore entitled to an i mmediate appeal. Determining wh ether review of the final agency decision would give Hilton an adequa te remedy requ ires us to reach the underlying merits of the Co mmission's order, and since we c onclude that the order cannot stand, we vacate the Court of Appeals' order and r emand the matter to the Commission. On remand, the C ommission will limit considerat ion to Respondent Flakeboard's 102 specific exceptions to the single c ommissioner's
order.

FACTS

Hilton suffered an admittedly compensable injury as the result of an insect or spider bite. The present disput e concerns whether he required further medicaltreatment to reach maximum medical improvement (MMI). The sing le commissioner agreed with Hilton on the merits, finding he had n ot reached MMI, and further that any misrepresent ations he had made during the life of his claim were a result of a serious cogni tive deficit from a previous br ain injury. Flakeboard appealed to the Commi ssion raising four "General Exceptions" and 102 specific exceptions to the single commissioner's order. The fo ur "General Exceptions" raised the issues o f MMI, temporary disability, Hil ton's entitlement to further medical treatment, and Hilton's credibility. Neither th e four general exceptions nor the 102 specific exceptions raised issues of com petency, the appointment of a Guardian ad Lite m, or any claim that Flakeboard had been denied its right to have Hilton evaluated by a physician of its choice

.

Following a hearing, the Commission—without observing Hilton— issued an order that first reproduced the single commissioner's order, th en recited a paragraph entitled "Issues on A ppeal," and finally concluded wi th these findings by
the Commission:

FINDINGS OF THE FULL COMMISSION

This matter was heard be fore the above-mentioned [Commission] during the la st term of Review. The [Commission] considered the matter and Vacate[s] and Remand[s] the Decision and Order to [the single commissioner] to determine whether or not [Hilton] is competent to testify and whet her or not [Hilton] needs a Guardian ad Litem pursuant to §42-15-55. They [sic] also order [Flakeboard] to send [Hi lton] to a neurologist of [its]
choice for an evaluation as to the causation and extent of [Hilton]'s problems.

ORDER

IT IS THEREFORE ORDERED that this matter is Vacated

and Remanded to the [single commissioner] for the purposes of making a determination as t o whether or not [Hilton] is competent to testify and whet her or not [Hilton] needs a Guardian ad Litem pursuant t o §42-15-55. It is also Ordered that [Flakeboard] send [Hilton] t o a neurologist of [its] choic efor an evaluation as to the cau sation and extent of [Hilton's] problems. Such evaluation shal l be made available to the [single commissioner] for his or her consideration.

AND SO IT IS ORDERED!

(emphasis in original).

Hilton appealed the Commission's decision to the Court of Appea ls. The Court of Appeals dismissed the appeal a s not immediately appealable unde r S.C. Code Ann. § 1-23-380(A). This grant of certiorari followed.

ISSUE

Did the Court of Appeals err in dism issing Hilton's appeal under S.C. Code Ann. § 1-23-380(A)?

ANALYSIS

Hilton argues the Court of Appeal s erred in dismissing his appe al because the
Commission's order was immediately appealable under section 1-2 3-380(A). We agree. We decide the merits of Hilton's challenge to the Commis sion's order and vacate the Court of Appeals' ord er and remand to the Commission with orders to only address the issues preserv ed in Flakeboard's Form 30.

Appeals from administrative agencies are governed by the Admini strative
Procedures Act. Bone v. U.S. Food Service , 404 S.C. 67, 76, 744 S.E.2d 552, 557 (2013). Section 1-23-380(A) of the APA states a "preliminary, p rocedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy." 1 This Court has held

1 The concurring opinion maintains that "the result the Court rea ches today is directly contrary to" the decision in Bone

. Bone , a plurality opinion, defined the issue it was addressing as "the meaning of a "final judgment" under [a prior version of S.C. Code Ann.] secti on 1-23-390," whereas the issue in this case is the meaning of the exception to a " final agency decision" in § 1-23 -380(A). These twothat whether an intermediate ac tion or ruling is immediately re viewable is to be decided on a case-by-case basis i. e., whether a review of the f inal decision would not provide an adequate remedy. The Island Packet v. Kittrell , 365 S.C. 332, 339, 617 S.E.2d 730, 734 (2005) (interpreting identical language in a previous version of section 1-23-380).

Only issues raised to the Commission within the application for review of the single commissioner's order are preserved for review. Ham v. Mullins Lumber Co

., 193 S.C. 66, 7 S.E.2d 712 (1952) ( holding that all findings of fact and law by the Hearing Commissioner became and are the law of the case, unless within the scope of the appellant's exception to the Full Commission); Brunson v. American Koyo Bearings, 367 S.C. 161, 165, 623 S.E.2d 870, 872 (Ct. App. 2005) (holding that the findings of fact and law by th e single commissioner become and are the law of the case unless excepted to by appellant) abrogated in part on other grounds by
Bone v. U.S. Food Service , 404 S.C. 67, 744 S.E.2d 552 (2013); Green v. City of
Columbia , 311 S.C. 78, 80, 427 S.E.2d 685 (Ct. App. 1993) (holding the findings of fact and law by the single co mmissioner become the law of th e case, unless within the scope of the appellant's exception to the single com missioner's order) abrogated in part on other grounds by Bone v. U. S. Food Service , 404 S.C. 67, 744 S.E.2d 552 (2013). This Court has also held that g eneral exceptions, such as "the commission erred in making an a ward," are too ambiguous to fulf ill the notice requirements of due process and do not preserve an issue for re view. See Jones v.
Anderson Cotton Mills , 205 S.C. 247, 31 S.E.2d 447 (1944).

The Commission has further empha sized the importance of includi ng all appealed issues in the Form 30 through its own regulations. Each party " shall arrange and present all evidence at the hear ing." 8 S.C. Code Ann. Regs. 67 -613(A) (2012). And when a party decides to app eal the decision of the single c ommissioner:

(3) The grounds for appeal must be set out in detail on the For m 30 in the form of questions presented.

statutes, in addition to using different terminology, govern appealability in two
different situations. Section 1- 23-390, along with Rule 242, SC ACR, govern this
Court's review of a final decisi on by an intermediate judicial tribunal, while § 1

- 23-380 defines the circumstance s under which a judicial body ma y review an agency decision. See

, e.g. , Shatto v. McLeod Reg. Med. Center , 406 S.C. 470, 753 S.E.2d 416 (2013) fn. 2.(a) Each question presented must be concise and concern one finding of fact, conclusion of law, or other proposition the appellant
believes is in error.

8 S.C. Code Ann. Reg s. 67-701 (2012).

Under these unique circumstances where the Commi ssion has order ed the relitigation of the entire disput e without regard to the matter s raised by the appealing party, we find that requiring Hilton to wait until th e final agency decision to appeal would not provide him an adequa te remedy. Pr ior to the Commission's order, no issue rega rding Hilton's competency had been raised by the attorneys for any party, 2 by the single commissioner who observed Hilton's live testimony, or by the medical expe rts who evaluated him. The Com mission, nonetheless, without the benefit of personally observing Hilton

, sua sponte raised the issues of competency, and potential appointment of a Guardi an ad Litem. It
further ex mero motu ordered Hilton to have his phy sical injuries evaluated by a physician of Flakeboard's choosing. Further, instead of simply remanding for a competency determination leavi ng open the possibility the singl e commissioner would find Hilton competent, it vacated the single commissioner 's order; thus ordering both parties to begin anew, regardless of the ultimate competency determination. These extreme rem edies, moreover, were ordered w ithout any explanation from the Commission.

As with competency, F lakeboard never sought to have Hilton seen by a doctor of its choosing. The Commission ex mero motu ordered Hilton to be seen by a doctor of Flakeboard's choosing to det ermine the cause of his physical injuries. To be sure, S.C. Code Ann. § 42-17-30 (2015) 3 and S.C. Code Ann. § 42-15-80 (2015) 4

2 Flakeboard's claim that its four general exceptions raised thes e issues to the Commission is contrary to this Court's jurisprudence. Each issu e raised to the Commission must be done with sp ecificity, not through blanket general exceptions. Further, we find no evidence in t his record that Flakeboard was concerned with Hilton's competency or the need for an additional medical exami nation. Ham v.
Mullins Lumber Co ., 193 S.C. 66, 7 S.E.2d 712 (1952) (holding unchallenged findings of the single commissione r became the law of the case).

3 Section 42-17-30 states, in pertinent part, "The commission or any member thereof may, upon the applicati on of either party or upon its o wn motion, appoint agrant the Commission the authority to require Hilton to be eval uated by a physician of its choosing. But instead, the Commission ordered Flakeboard "to send [Hilton] to a neurologist of their choice . . . ," despite no such reque st being made by
Flakeboard under either statute . The Commission's order further more gives no explanation why further medical evaluation is required; a decis ion effectively granting Flakeboard a "do ove r" of the entire litigation.

Under these extraordinary circ umstances, we are convinced that the standard set by section 1-23-380(A) has been met . The facts of this case—where the Commission
has in effect ordered a new tri al without regard to the matters raised by the appealing party and without any e xplanation why such an extreme remedy is appropriate—convince us that requiring H ilton to wait to appeal until the final agency decision would not provi de an adequate r emedy. If under the circumstances presented here, the Commission's order is allowed to stand, a p arty could face the possibility of repeated unexplaine d "do overs" before a final d ecision of the
Commission. We caution that circumstances such as these that wi ll permit the immediate appeal of an interlocu tory administrative decision un der section 1-23

- 380(A) "are about as rare as the proverbial hens' teeth." State v. Lytchfield , 230
S.C. 405, 409, 95 S.E.2d 857, 859 (1957) (referring to appellat e reversals of denial of continuance motions).

CONCLUSION

We vacate the Court of Appeals' order dismissing Hilton's appea l and remand the
matter to the Commission for cons ideration only of Flakeboard's 102 specific exceptions to the single commissi oner's order raised in the For m 30.

disinterested and duly qualified physician or surgeon to make a ny necessary medical examination of any empl oyee and to testify in respect t hereto."

4 Section 42-15-80 states, "After an injury and so long as he cla ims compensation, the employee, if so requested by his employer or ordered by the commission, shall submit himself to examination, a t reasonable times and places, by a qualified physician or surgeon designated a nd paid by the employer or com mission."VACATED AND REMANDED

.



### Acting Justice James E. Moore, concurs. BEATTY, J., concurring in result only. KI TTREDGE, J., concurring in a separate opinion in which HEARN, J., concurs.JUSTICE KITTREDGE: I concur in result but write s eparately to note my view that the result the Court reaches today is directly contrary to this Court's decision in

Bone v. U.S. Food Service , 404 S.C. 67, 744 S.E.2d 552 (2013). I joined the
dissent in Bone , and I remain firmly convinced that Bone was wrongly decided and should be overruled. The majority maintains that this case is distinguishable from

Bone because "the issue in this cas e is the meaning of the exceptio n to a 'final agency decision' in § 1-23-380(A )." Specifically, the majority cites to the provision in section 1-23-380 that states, "A preliminary, proc edural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380 (Supp. 2015). The major ity correctly finds "that review of the final agency decision would not provi de Hilton with an adequate remed y, and he is
therefore entitled to an immediat e appeal." But I respectfully disagree with the suggestion that Bone and this case involve "two different situations," for the petitioners in Bone made the identical argument base d on section 1-23-380 as that made by Hilton, i.e., that revi ew of a final agency decision wo uld not provide an adequate remedy. The Court rejected that argument in Bone , where it was far more compelling than it is in this case. See Bone , 404 S.C. at 74, 744 S.E.2d at 556 (concluding, after the circuit co urt ruled the employee–respond ent suffered a compensable injury as a matter of law, that review of the Worke rs' Compensation
Commission's final decision woul d provide the petitioners with an adequate remedy).

HEARN, J. concurs.