A Pitfall in SC Workers Comp Appeals

Does a petition for the South Carolina Workers’ Compensation Appellate Panel to reconsider its decision toll the time to further appeal? The state Supreme Court will decide on its review of Rhame v. Charleston County School District, 399 S.C. 477, 732 S.E.2d 202 (Ct.App. 2012).

The Case

In Rhame, the Employee won before the Single Commissioner but lost before the Commission’s Appellate Panel. He petitioned the Panel to reconsider its reversal of the Single Commissioner. The Panel dismissed the petition, and the Employee appealed to the Court of Appeals.

By the time the Commission dismissed the petition for rehearing, the time to appeal the underlying Panel decision had run. The appeal to the Court of Appeals was timely only if the petition for rehearing stayed the time until the decision on rehearing.

The Court of Appeals held that it did not, reasoning that the Workers Comp statute does not allow petitions for the Commission to rehear its decisions.

The Workers Comp Statute

The Court of Appeals is right — to a point. The workers comp statute that governs appeals from the Appellate Panel to the Court of Appeals does not authorize petitions for rehearing. S.C. Code Ann. § 42-17-60. Case law similarly states that Rule 59(e), SCRCP, motions to reconsider that apply in circuit court do not apply to the Commission. Rhame, 399 S.C. at 483. And the Commission’s regulations states that it will not address motions that involve the merits of a claim. S.C. Ann. Regs. 67-215(b).

The APA Statute and Appellate Rule

But this is only part of the story. The only part is that none of the cases that Rhame cited dealt with the Administrative Procedures Act.

The APA specifically provides for petitions for rehearing and tolling. It states that parties must appeal to the Court of Appeals “within thirty days after the final decision of the agency or, if a rehearing is requested, within thirty days after the decision is rendered.” S.C. Code Ann. § 1-23-380(1). The appellate rule is as clear. See Rule 203(b)(6), SCACR (“If a timely petition for rehearing is filed with the administrative tribunal, the time to appeal for all parties shall be stayed and shall run from receipt of the decision granting or denying that motion.”).

Which statutes apply?

So who is right?

The Employer argues that it should win under the familiar rule favoring specific statutes over more general ones. But this rule on construction should give way to the Legislature’s express intent.

In 2006, the General Assembly stated its intent that the APA provide uniform procedures in appeals from administrative agencies and that the APA controls over conflicting statutes and regulations. See, e.g., Wofford v City of Spartanburg, 410 S.C. 102, 103, 763 S.E.2d 53, 53-54 (Ct.App. 2014)(citing Act No. 387, 2006 S.C. Acts 3131).

Case law also holds that the APA governs appellate procedure when it and the workers comp statutes conflict. The Court of Appeals recently canvassed some of these decisions when it held that the APA, not § 42-17-60, governs what notices of appeal must say. Wofford, 410 S.C. at 102, 763 S.E.2d at 53.

The Employer also argued that rehearings are built into the workers comp process when the Commission’s Appellate Panel rehears orders from the Single Commissioner. While true, the Appellate Panel renders the final agency decision. The Employee argues that the APA authorizes petitions to rehear the final agency decision.

In support, the Employee cites an older decision in which four of the five Supreme Court Justices opined that the Full Commission enjoys the inherent authority to reconsider the Full Commission’s final decisions. In re Crawford, 205 S.C. 72, 30 S.E.2d 841 (1944).

But Crawford only goes so far in that the Commission’s inherent authority is now cabined by its regulation against motions that involve the merits. S.C. Ann. Regs. 67-215(b). If we are only talking about inherent authority, the ability to entertain petitions to reconsider should include the ability to prohibit such petitions.

So the issue narrows to whether S.C. Code Ann. § 1-23-380(1)  authorizes petitions for rehearing that § 42-17-60 does not allow and that S.C. Ann. Regs. 67-215(b) prohibits.

The Employee argues that it does, and points to the APA’s stated quest for uniformity. The Employer argues that the APA does not create a substantive right to petition for rehearing but provides procedures for appeals from agencies that already allow such petitions.

The Supreme Court heard oral argument this November. Here is the video –

Has anyone else moved a South Carolina agency to reconsider its final agency decision? How did it go?

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