Almost all post-2007 notices of appeal in South Carolina workers compensation cases are defective. I know, I know, it is a bold statement. But the workers comp statute says what it says, and it says, “Notice of Appeal must state the grounds of the appeal or the alleged errors of law.” S.C. Code Ann. § 42-17-60. Hardly any do.
To understand why, a brief look at the workers comp statute and the Administrative Procedures Act is helpful.
Brief History of the Workers Comp Statutes on Notices of Appeal
Once upon a time, S.C. Code Ann. § 1-23-380 of the APA required that notices of appeal state the grounds for the appeal and § 42-17-60 of the workers comp statutes did not. In Pringle v. Builder’s Transp., 298 S.C. 494, 381 S.E.2d 731 (1989), the Court held that the APA governed because the content requirement conflicted with the workers comp statute’s silence.
At the time, appeals under both statutes were to the circuit court and not the Court of Appeals.
The Legislature then did something funny. In 1990, it put the content requirement into § 42-17-60, and in 2006 took it out of § 1-23-380. And when it took the requirement out of § 1-23-380, it provided for appeals directly to the Court of Appeals. But it did not then amend the workers comp statute. The workers comp statute continued to require for appeals to the circuit court and that the notice state the grounds.
That next year, the Legislature in 2007 amended the workers comp statute to provide for a direct appeal to the Court of Appeals — without altering the requirement that the notice of appeal state the grounds for appeal.
So where are we now?
Judge Cureton says no need to state grounds
This issue came up in appeal I took a while back. I filed a notice of appeal for a claimant and dutifully stated the grounds in the notice. The employer filed a cross-appeal without stating the grounds. I moved to dismiss, arguing that the notice was defective under § 42-17-60 and that the workers comp statute applied because:
- The APA and workers comp statutes compliment each other in that the APA deals with the notice of appeal’s service and filing but not its content, and the workers comp statute deals with content but not service and filing.
- The statutes compliment each other because a party may comply with both (like I did in my notice of appeal).
- The workers comp statute controlled because it was the Legislature’s last word.
Alas, Judge Cureton disagreed. He ruled that the two statutes conflict and that the Legislature — in 2006 — said that the APA controls when there is a conflict. The order does not address the workers comp statute’s subsequent amendment in 2007.
And the panel ruled against me on the merits, thus allowing it to side-step the issue.
Anyone else face this issue? Please leave a reply or a comment, or reach me here.