THE STATE OF SOUTH CAROLINA
In The Supreme Court
Otis Nero, Respondent,
v.
South Carolina Department of Transportation, Employer,
and State Accident Fund, Carrier, Petitioners.
Appellate Case No. 2017-001970
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from The Workers' Compensation Commission
Opinion No. 27789
Submitted March 7, 2018 – Filed April 4, 2018
REVERSED AND REMANDED
John Gabriel Coggiola, of Willson, Jones, Carter &
Baxley, P.A., of Columbia, for Petitioners.
Stephen J. Wukela, of Wukela Law Firm, of Florence, for
Respondent.
PER CURIAM: Petitioners seek a writ of certiorari to review the court of appeals'
decision in Nero v. South Carolina Department of Transportation, 420 S.C. 523, 804
S.E.2d 269 (Ct. App. 2017). We grant the petition, dispense with further briefing,
reverse, and remand the case to the court of appeals to issue a ruling applying the
substantial evidence standard of review.
Respondent filed a workers' compensation claim alleging he sustained injuries to his
back and shoulder while on the job. The single commissioner found respondent
suffered an injury by accident arising out of and in the course of respondent's
employment, and awarded benefits. The appellate panel reversed the decision of the
single commissioner, finding respondent failed to provide timely notice of the injury.
See S.C. Code Ann. § 42-15-20 (2015) (setting forth the requirement of timely
notice).
On appeal from the commission's decision, the court of appeals employed the de
novo standard of review applicable to jurisdictional questions, 420 S.C. at 529, 804
S.E.2d at 272, and reversed the commission, 420 S.C. at 535, 804 S.E.2d at 276. In
finding the question of timely notice was a jurisdictional question subject to de novo
review, the court of appeals relied on Shatto v. McLeod Regional Medical Center,
406 S.C. 470, 753 S.E.2d 416 (2013) and Mintz v. Fiske-Carter Construction Co.,
218 S.C. 409, 63 S.E.2d 50 (1951). However, neither Shatto nor Mintz supports the
court of appeals' use of the de novo standard. Shatto involved "the question of
whether [the claimant] was . . . an employee . . . or an independent contractor," and
thus is inapplicable to this case. 406 S.C. at 475, 753 S.E.2d at 419. Mintz did
involve what we called "the jurisdictional defense of no timely notice," 218 S.C. at
413, 63 S.E.2d at 52, but in that case we did not review a finding of the commission.
Rather, after the commission neglected to rule on the question, we made our own
finding of fact. 218 S.C. at 415, 63 S.E.2d at 52-53. Our casual use of the word
"jurisdictional" was not necessary to our decision, and thus dictum.
Until this case, the court of appeals has consistently applied the substantial evidence
standard when reviewing decisions of the commission on the question of timely
notice. See, e.g., King v. Int'l Knife & Saw-Florence, 395 S.C. 437, 443, 718 S.E.2d
227, 230 (Ct. App. 2011) ("The Appellate Panel's findings concerning notice are
subject to the substantial evidence standard."); Murphy v. Owens Corning, 393 S.C.
77, 82, 710 S.E.2d 454, 457 (Ct. App. 2011) ("The Commission's findings of fact
regarding notice and the statute of limitations are reviewed under the substantial
evidence standard of review."); Watt v. Piedmont Auto., 384 S.C. 203, 212, 681
S.E.2d 615, 620 (Ct. App. 2009) (holding the commission's ruling that a claimant
failed to provide the required notice was supported by substantial evidence); Lizee
v. S.C. Dept. of Mental Health, 367 S.C. 122, 127, 623 S.E.2d 860, 863 (Ct. App.
2005) (holding substantial evidence did not support the commission's finding that a
claimant provided timely notice); Bass v. Isochem, 365 S.C. 454, 461, 617 S.E.2d
369, 372 (Ct. App. 2005) (holding substantial evidence did not support the
commission's decision to deny benefits because claimant failed to give timely
notice); Etheredge v. Monsanto Co., 349 S.C. 451, 459, 562 S.E.2d 679, 683 (Ct.
App. 2002) (holding the commission's findings regarding notice were supported by
substantial evidence); Muir v. C.R. Bard, 336 S.C. 266, 300, 519 S.E.2d 583, 601
(Ct. App. 1999) (holding substantial evidence supported the commission's finding
that a claimant gave timely notice of his claim); Hanks v. Blair Mills, Inc., 286 S.C.
378, 382, 335 S.E.2d 91, 93 (Ct. App. 1985) (substantial evidence supported the
finding that employer was notified of worker's job-related injury within ninety days).
In Hartzell v. Palmetto Collision, LLC, 406 S.C. 233, 750 S.E.2d 97 (Ct. App. 2013),
rev'd, 415 S.C. 617, 785 S.E.2d 194 (2016), the employer raised the jurisdictional
question of whether "it regularly employed four or more employees." 406 S.C. at
241, 750 S.E.2d at 101. The court of appeals reviewed the commission's decision
on this question de novo, stating "'an appellate court reviews jurisdictional issues by
making its own findings of fact without regard to the findings and conclusions of the
Appellate Panel.'" Id. (quoting Hernandez-Zuniga v. Tickle, 374 S.C. 235, 244, 647
S.E.2d 691, 695 (Ct. App. 2007)). The employer also raised the question of timely
notice. 406 S.C. at 246, 750 S.E.2d at 103-04. The court of appeals reviewed the
commission's decision on the notice question, however, using the substantial
evidence standard. 406 S.C. at 246, 750 S.E.2d at 104. The court of appeals stated,
"We find the Appellate Panel's determination that Claimant provided Employer with
adequate notice he had suffered a work-related injury is not supported by substantial
evidence in the record . . . ." 406 S.C. at 247, 750 S.E.2d at 104. We reversed the
court of appeals, also applying the substantial evidence standard of review to the
question of timely notice, stating,
While reasonable minds could have reached a different
conclusion based on the record, we must not engage in
fact-finding that would disregard the Commission's factual
findings on these issues. . . . We find the Commission's
findings are supported by substantial evidence.
Hartzell v. Palmetto Collision, LLC, 415 S.C. 617, 623, 785 S.E.2d 194, 197 (2016).
Thus, the court of appeals erred in applying the de novo standard. Under well-settled
law, the commission's determination of whether a claimant gave timely notice under
section 42-15-20 is not a jurisdictional determination, and must be reviewed on
appeal under the substantial evidence standard. We reverse the court of appeals and
remand for a decision under the proper standard of review.
REVERSED AND REMANDED.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.