Bone v. U.S. Food Service

Justice HEARN.

I respectfully dissent. While I agree that Section 1-23-390 is the controlling statute, I do not agree that the circuit court’s order resolving the issue of compensability was not a final order from which a further appeal could be taken.

To begin, I agree with the majority that the APA governs appealability in administrative cases, which means the general rules of appealability do not apply. The APA provides appeal-ability standards for two different stages of appeals: from the *85administrative body to the judiciary and further appellate review within the courts. This case involves only the latter, which is controlled by section 1-23-390. I also agree that the heart of this case is what the words “final judgment” in section 1-23-390 mean, but I disagree with the majority’s interpretation of that term. In my view, the test which has heretofore been applied to determine whether an appellate decision is a “final judgment” eligible for further review under section 1-23-390 is whether the order finally determines an issue affecting a substantial right on the merits. The circuit court order under review in this case is just such an order.

The first time we expressly interpreted this statute was in Montjoy v. Asten-Hill Dryer Fabrics, 316 S.C. 52, 446 S.E.2d 618 (1994). At the time that case was decided, section 1-23-390 read: “An aggrieved party may obtain a review of any final judgment of the circuit court under this article by appeal to the Supreme Court. The appeal shall be taken as in other civil cases.” S.C.Code Ann. § 1-23-390 (1986). Under this standard, which is similar to the present version of section 1-23-390, “we have consistently held that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable.” Montjoy, 316 S.C. at 52, 446 S.E.2d at 618 (1994).

Because the scope of the remand in Montjoy is not apparent from the opinion, it is necessary to examine the two workers’ compensation cases relied on therein in order to fully understand the parameters of its holding: Hunt v. Whitt, 279 S.C. 343, 306 S.E.2d 621 (1983), and Owens v. Canal Wood Corp., 281 S.C. 491, 316 S.E.2d 385 (1984).10 In both Hunt and Owens, the circuit court remanded to the full commission for the taking of additional testimony. We held that neither order was reviewable by this Court because they did not involve the merits of the action and were therefore interlocutory.

The circuit court order in this case, however, unlike the orders in Hunt and Owens, resolved the issue of compensability with finality and was clearly appealable, just as the full *86commission’s order, which was also a final decision on compensability, was appealable by Bone in the first instance. Both parties conceded at re-argument that upon remand, the full commission will have no alternative but to make an award to Bone, the circuit court having reached the ultimate issue in the case — whether Bone suffered a compensable injury. Nevertheless, Bone has stunningly succeeded in arguing to the majority that while she was entitled to appeal the full commission’s decision to the circuit court, once the circuit court reversed the commission’s finding of no compensability, the order was transformed into an unappealable order and the employer is precluded from appealing further until after the remand results in an award to Bone. I cannot accept the premise that by reversing the commission on a factually-driven issue and remanding, an appellate court — in this instance the circuit court — can cut off further review up the appellate chain. If Bone could appeal the full commission’s decision against her on the issue of compensability, then surely the employer is entitled to appeal the circuit court’s order reversing that finding. In other words, appealability, once established, should not be extinguished by one level of appellate review; appealability should not be a moving target.

I would argue a bright line rule is not only impermissible under the statutory framework and Charlotte-Mecklenburg, but also is not necessary. In the years since Montjoy, the court of appeals had many opportunities to evaluate appealability under section 1-23-390. In particular, the court of appeals examined the issue at length in Brown v. Greenwood Mills, Inc., 366 S.C. 379, 622 S.E.2d 546 (Ct.App.2005). There, Brown, a worker in a cotton mill, developed breathing problems after years of service. Id. at 383, 622 S.E.2d at 549. Although he also smoked cigarettes for forty-five years, he claimed the respiratory troubles he developed were caused by his work in the mill. Id. at 382, 622 S.E.2d at 548. Despite the evidence to the contrary, the single commissioner concluded Brown’s “respiratory disease arose out of and in the course of his employment; said disease was due to hazards of the employment which are excess of hazards normally incident to normal employees.” Id. at 384, 622 S.E.2d at 550. The full commission affirmed. Id. at 385, 622 S.E.2d at 550. The circuit court, however, held Brown’s smoking was a contribut*87ing cause of his illness, and therefore the mill was entitled to a reduction in the compensation it owed. Id. at 386, 622 S.E.2d at 550. Accordingly, the circuit court remanded for a determination of the size of the reduction. Id.

Brown appealed, and the mill argued the order remanding to the commission was not immediately appealable. Id. at 386, 622 S.E.2d at 550-51. The court of appeals, citing section 1-23-390, Montjoy, Owens, and Hunt, held that “in determining whether the court’s order constitutes a final judgment, we must inquire whether the order finally decides an issue on the merits.” Id. at 387, 622 S.E.2d at 551. As the court went on to note, “ ‘An order involves the merits if it finally determines some substantial matter forming the whole or part of some cause of action or defense in the case.’ ” Id. (quoting Green v. City of Columbia, 311 S.C. 78, 80, 427 S.E.2d 685, 687 (Ct.App. 1993)). Because the circuit court finally determined that Brown’s smoking contributed to his injuries, its order was a final judgment under section 1-23-390 and therefore was appealable. Id. at 388, 622 S.E.2d at 551. The fact the circuit court had also remanded the proceedings was of no moment because “the panel would have no choice but to allocate some part of Brown’s disability to the non-compensable cause.” Id. As both parties conceded at re-argument, this is precisely the situation facing the commission upon remand here.

The court of appeals reached the same result in Mungo v. Rental Uniform Service of Florence, Inc., 383 S.C. 270, 678 S.E.2d 825 (Ct.App.2009). In that case, the claimant, Mungo, alleged a change in condition that would entitle her to more benefits than she originally was awarded for her injuries. See id. at 276, 678 S.E.2d at 828. The single commissioner denied her request because the report she used to show a change in condition was completed prior to the original hearing. Id. The full commission affirmed, and Mungo appealed to the circuit court. Id. The court reversed, holding the report could be considered and Mungo had demonstrated a change in condition. Id. at 276-77, 678 S.E.2d at 828. Accordingly, the court remanded to the commission for a determination of “the precise benefits owed to [Mungo] for her change in condition and for her psychological condition.” Id. at 277, 678 S.E.2d at 828-29.

*88The employer sought review before the court of appeals, and the threshold question was whether the circuit court’s order was appealable. Id. at 277, 678 S.E.2d at 829. Relying in part on Brown, the court found it was appealable, stating:

The circuit court’s order mandates an award for change of condition.... This ruling is a decision on the merits because it decides with finality whether [Mungo] proved these changes in her condition. Although the circuit court remanded the issue of the precise damages to be awarded to [Mungo], the single commissioner would have no choice but to award some damages to [her]. Accordingly, the circuit court’s order constitutes a final decision and is appealable.

Id. at 278, 678 S.E.2d at 829.

The court of appeals also has used this same framework to determine when an order of the circuit court is not appealable. For example, in Foggie v. General Electric Co., 376 S.C. 384, 656 S.E.2d 395 (Ct.App.2008), the circuit court held the full commission’s finding of permanent total disability rested, at least in part, on evidence which should have been excluded. Id. at 387, 656 S.E.2d at 397. The court also found the commission did not make any findings regarding a potential credit to the employer for previous psychological injuries the employee sustained. Id. at 387-88, 656 S.E.2d at 397. Consequently, the court remanded with instructions for the commission to review the record without the excluded evidence and determine whether the employee was still permanently and totally disabled, and to make findings regarding the employer’s entitlement to the credit. Id.

The employee appealed, and the court of appeals held the circuit court had not made a final determination of whether the employee was totally and permanently disabled or whether the employer could receive any credit. Id. at 389, 656 S.E.2d at 398. Accordingly, the circuit court’s order was not immediately appealable. Id.; see also McCrea v. City of Georgetown, 384 S.C. 328, 333, 681 S.E.2d 918, 921 (Ct.App.2009) (“The circuit court’s order was not a final judgment and did not involve the merits of the case. The circuit court remanded the case to the Commission so that additional evidence could be entered into the record without determining whether Claimant *89was disabled or whether Employer was entitled to stop payments. As such, this appeal is interlocutory.”).

Accordingly, prior to today, the test consistently applied in this State to determine whether an appellate decision was eligible for further review under section 1-23-390 was whether the order finally determined an issue affecting a substantial right on the merits. Under that framework, there could be little question that employer is entitled to appeal the circuit court’s decision that there was no evidence to support the full commission’s conclusion that Bone was not injured on the job because that decision affected a substantial right on the merits — Bone’s entitlement to benefits. However, rather than applying this traditional test, the majority holds that Charlotte-Mecklenburg rejected the “involving the merits” analysis under the APA and implicitly overruled a long line of cases. While I believe Charlotte-Mecklenburg was properly decided, it has no impact on this case.

In Charlotte-Mecklenburg, the Administrative Law Court (ALC) partially granted summary judgment and remanded for the Department of Health and Environmental Control to decide whether any party was entitled to a certificate of need.11 387 S.C. at 266, 692 S.E.2d at 894. One of the parties appealed the ALC’s order, and we dismissed the appeal as interlocutory. Id. The controlling statute in Charlotte-Mecklenburg was not section 1-23-390. Instead, it was Section 1-23-610 of the South Carolina Code (Supp.2011), which provides “for judicial review of a final decision of an administrative law judge.”12 (emphasis added). We defined a final decision in this context as follows:

*90If there is some further act which must be done by the court prior to a determination of the rights of the parties, the order is interlocutory. A judgment which determines the applicable law, but leaves open questions of fact, is not a final judgment. A final judgment disposes of the whole subject matter of the action or terminates the particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined.

Charlotte-Mecklenburg, 387 S.C. at 267, 692 S.E.2d at 894-95 (internal citations omitted). Because the ALC’s order did not finally determine whether any party was entitled to a certificate of need, the order under review was not a final decision and thus not immediately appealable.13 Id. at 267, 692 S.E.2d at 895.

The majority therefore is correct that Charlotte-Mecklenburg rejected an “involving the merits” analysis with respect to administrative and agency decisions. See id. at 266, 692 S.E.2d at 894 (“[Although § 14-3-330 permits appeals from interlocutory orders which involve the merits, that section is inapplicable in cases where a party seeks review of a decision of the ALC because the more specific statute, § 1-23-610, limits review to final decisions of the ALC.”). CharlotteMecklenburg therefore examined a different statute and a different stage in the appellate process for administrative cases. Rather than determining whether an order of the circuit court sitting in an appellate capacity or the court of appeals is ripe for further review up the appellate chain, Charlotte-Mecklenburg only concerned whether the administrative order itself is final and therefore appealable to the judicial branch in the first instance. It went no further than that, and I believe the majority is in error in stretching it’s *91holding beyond the clearly delineated bounds of the opinion. Indeed, the opinion in Charlotte-Mecklenburg was issued without either briefing or oral argument; it was issued solely on the basis of a motion to dismiss and supporting memoranda. It is inconceivable that we could have intended to undo years of appellate precedent, not to mention impact the appealability of orders at an entirely different stage in the proceedings.

Put in the context of this case, Charlotte-Mecklenburg governs the appealability of the full commission’s decision, not the appealability of the circuit court’s order reviewing the commission’s decision. Because the full commission found Bone’s claim was not compensable, it rendered a final judgment and the circuit court could entertain the appeal under Charlotte-Mecklenburg. At this point, appealability ceased to be governed by Charlotte-Mecklenburg and was then controlled by section 1-23-390. Thus while I believe that Charlotte-Mecklenburg is correct, given its procedural posture, I do not believe it has any impact on the case before us.

The majority also suggests its decision will not only further judicial economy but also serve the Workers’ Compensation Act’s underlying purpose of affording compensation to injured workers. The majority asserts that, as between the two parties, the employer is in a better position to shoulder the payment of benefits during the pendency of an eventual appeal. That position misses the point that the Act is designed to provide benefits to workers who are injured on the job, a fact which the employer disputes and which the full commission decided in its favor. No employer should have to pay benefits until the worker establishes before the fact-finder, which is the full commission, that she has sustained a compensable injury. Bone simply has not done that yet, and it cannot be good public policy to require employers to pay benefits without the issue of compensability of the claim being finally adjudicated. The employer is entitled, not only under the law, but also on public policy grounds, to have the circuit court’s order on compensability reviewed by the highest court. It is neither good law nor good policy to hold that the appellate chain can be broken when, at the first layer of appellate review, the court reverses the fact-finder and sends *92the case back for the commission to perform the perfunctory task of setting compensation for the worker.

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. In this case, once the full commission renders a decision on the benefits owing to Bone, the parties will return again to the court of appeals. In doing so, the employer runs the risk that the court of appeals will again remand the case, at which point it will have to start the process all over again. Only after that court issues its “final” order — assuming it finds nothing else warranting a remand— will the employer finally be able to argue to this Court that the full commission correctly held Bone’s claim was not compensable back in June of 2008.

Because I believe the issue of compensability was finally decided by the full commission and the circuit court, sitting in an appellate capacity, could not thwart further appellate review by ordering a remand, I would find the order appealable under section 1-23-390. See Mungo, 383 S.C. at 278, 678 S.E.2d at 829 (“Although the circuit court remanded the issue of the precise damages to be awarded to Claimant, the single commissioner would have no choice but to award some damages to Claimant. Accordingly, the circuit court’s order constitutes a final decision and is appealable.”); Brown, 366 S.C. at 387-88, 622 S.E.2d at 551 (holding circuit court’s order that apportionment was required was final and appealable even though the court remanded for a determination of the amount of apportionment due). Nothing in Charlotte-Meeklenburg impacts this decision; rather, it results from a straight-forward application of section 1-23-390, which permits an appeal from a final decision involving the merits of the substantive issue in this case. I would hold that the court of appeals erred in dismissing the employer’s appeal.

KITTREDGE, J., concurs.

. Section 1-23-390 was passed into law in 1977. See 1977 Act No. 176, Art. II, § 9. Accordingly, even though they do not cite this statute, Hunt and Owens were governed by it.

. In order to obtain permission to construct certain healthcare facilities, the facility must demonstrate the need for the proposed facility. See S.C.Code Ann. § 44-7-110, et seq. (2002 & Supp.2011).

. The statute governing appeals from the Workers' Compensation Commission is Section 1-23-380 of the South Carolina Code (Supp. 2011), a sister statute of section 1-23-610, which similarly provides that ‘‘[a] party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review.” I agree with the majority that Charlotte-Mecklenburg's interpretation of section 1-23-610 applies equally to section 1-23-380.

. In reaching this result, we overruled two cases "to the extent [they] rely on [Section 14-3-330 of the South Carolina Code (1976) ] to permit the appeal of interlocutory orders of the ALC or an administrative agency.” Charlotte-Mecklenburg, 387 S.C. at 266, 692 S.E.2d at 894. The cases were Canteen v. McLeod Regional Medical Center, 384 S.C. 617, 682 S.E.2d 504 (Ct.App.2009) and Oakwood Landfill, Inc. v. South Carolina Department of Health & Environmental Control, 381 S.C. 120, 671 S.E.2d 646 (Ct.App.2009). Both of these cases concerned the initial appeal of an administrative order, not further appellate review of an order of the circuit court. See Canteen, 384 S.C. at 624, 682 S.E.2d at 507; Oakwood, 381 S.C. at 132, 671 S.E.2d at 653.