THE STATE OF SOUTH CAROLINA
In The Supreme Court
Thomas Chad Hilton, Claimant, Petitioner,
v.
Flakeboard America Limited, Employer, and Liberty
Mutual Insurance Company, Carrier, Defendants,
Respondents.
Appellate Case No. 2015-000493
ON WRIT OF CERTIORARI TO THE COURT OF 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, of
Columbia; Michelle Powers, of Powers Law, of
Greenwood; Ronald J. Jebaily and Suzanne H. Jebaily,
both of Jebaily Law Firm, of Florence; Andrea Roche, of
Mickle and Bass, of Columbia; John S. Nichols and
Blake A. Hewitt, both of Bluestein Nichols Thompson
and Delgado, of Columbia; Mary E. Jordan, of Hilton
Head Island; David Pearlman, 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 Petitioner 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 Commission's single
commissioner's (single commissioner) order is immediately appealable pursuant to
S.C. Code Ann. § 1-23-380(A) (Supp. 2015). Section 1-23-380(A) states, in
relevant part, that "a preliminary, procedural, or intermediate agency action or
ruling is immediately reviewable if review of the final agency decision would not
provide an adequate remedy." We agree, under these unusual facts, that review of
the final agency decision would not provide Hilton with an adequate remedy, and
he is therefore entitled to an immediate appeal. Determining whether review of the
final agency decision would give Hilton an adequate remedy requires us to reach
the underlying merits of the Commission's order, and since we conclude that the
order cannot stand, we vacate the Court of Appeals' order and remand the matter to
the Commission. On remand, the Commission will limit consideration to
Respondent Flakeboard's 102 specific exceptions to the single commissioner's
order.
FACTS
Hilton suffered an admittedly compensable injury as the result of an insect or
spider bite. The present dispute concerns whether he required further medical
treatment to reach maximum medical improvement (MMI). The single
commissioner agreed with Hilton on the merits, finding he had not reached MMI,
and further that any misrepresentations he had made during the life of his claim
were a result of a serious cognitive deficit from a previous brain injury.
Flakeboard appealed to the Commission raising four "General Exceptions" and 102
specific exceptions to the single commissioner's order. The four "General
Exceptions" raised the issues of MMI, temporary disability, Hilton's entitlement to
further medical treatment, and Hilton's credibility. Neither the four general
exceptions nor the 102 specific exceptions raised issues of competency, the
appointment of a Guardian ad Litem, 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, then recited a
paragraph entitled "Issues on Appeal," and finally concluded with these findings by
the Commission:
FINDINGS OF THE FULL COMMISSION
This matter was heard before the above-mentioned
[Commission] during the last 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 whether or not [Hilton] needs a
Guardian ad Litem pursuant to §42-15-55. They [sic] also
order [Flakeboard] to send [Hilton] 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 to whether or not [Hilton] is
competent to testify and whether or not [Hilton] needs a
Guardian ad Litem pursuant to §42-15-55. It is also Ordered
that [Flakeboard] send [Hilton] to a neurologist of [its] choice
for an evaluation as to the causation and extent of [Hilton's]
problems. Such evaluation shall 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 Appeals. The Court of
Appeals dismissed the appeal as not immediately appealable under S.C. Code Ann.
§ 1-23-380(A). This grant of certiorari followed.
ISSUE
Did the Court of Appeals err in dismissing Hilton's appeal
under S.C. Code Ann. § 1-23-380(A)?
ANALYSIS
Hilton argues the Court of Appeals erred in dismissing his appeal because the
Commission's order was immediately appealable under section 1-23-380(A). We
agree. We decide the merits of Hilton's challenge to the Commission's order and
vacate the Court of Appeals' order and remand to the Commission with orders to
only address the issues preserved in Flakeboard's Form 30.
Appeals from administrative agencies are governed by the Administrative
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, procedural, 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 reaches 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.] section 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 two
that whether an intermediate action or ruling is immediately reviewable is to be
decided on a case-by-case basis i.e., whether a review of the final 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 the 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 commissioner become the law of the case, unless
within the scope of the appellant's exception to the single commissioner'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 general exceptions, such as "the
commission erred in making an award," are too ambiguous to fulfill the notice
requirements of due process and do not preserve an issue for review. See Jones v.
Anderson Cotton Mills, 205 S.C. 247, 31 S.E.2d 447 (1944).
The Commission has further emphasized the importance of including all appealed
issues in the Form 30 through its own regulations. Each party "shall arrange and
present all evidence at the hearing." 8 S.C. Code Ann. Regs. 67-613(A) (2012).
And when a party decides to appeal the decision of the single commissioner:
(3) The grounds for appeal must be set out in detail on the Form 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, SCACR, govern this
Court's review of a final decision by an intermediate judicial tribunal, while § 1-
23-380 defines the circumstances under which a judicial body may 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. Regs. 67-701 (2012).
Under these unique circumstances where the Commission has ordered the
relitigation of the entire dispute without regard to the matters raised by the
appealing party, we find that requiring Hilton to wait until the final agency
decision to appeal would not provide him an adequate remedy. Prior to the
Commission's order, no issue regarding 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 experts who evaluated him. The Commission,
nonetheless, without the benefit of personally observing Hilton, sua sponte raised
the issues of competency, and potential appointment of a Guardian ad Litem. It
further ex mero motu ordered Hilton to have his physical injuries evaluated by a
physician of Flakeboard's choosing. Further, instead of simply remanding for a
competency determination leaving open the possibility the single 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 remedies, moreover, were ordered without any
explanation from the Commission.
As with competency, Flakeboard 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 determine 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 these issues to the
Commission is contrary to this Court's jurisprudence. Each issue raised to the
Commission must be done with specificity, not through blanket general exceptions.
Further, we find no evidence in this record that Flakeboard was concerned with
Hilton's competency or the need for an additional medical examination. Ham v.
Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712 (1952) (holding unchallenged
findings of the single commissioner became the law of the case).
3
Section 42-17-30 states, in pertinent part, "The commission or any member
thereof may, upon the application of either party or upon its own motion, appoint a
grant the Commission the authority to require Hilton to be evaluated by a physician
of its choosing. But instead, the Commission ordered Flakeboard "to send [Hilton]
to a neurologist of their choice . . . ," despite no such request being made by
Flakeboard under either statute. The Commission's order furthermore gives no
explanation why further medical evaluation is required; a decision effectively
granting Flakeboard a "do over" of the entire litigation.
Under these extraordinary circumstances, 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 trial without regard to the matters raised by the
appealing party and without any explanation why such an extreme remedy is
appropriate—convince us that requiring Hilton to wait to appeal until the final
agency decision would not provide an adequate remedy. If under the circumstances
presented here, the Commission's order is allowed to stand, a party could face the
possibility of repeated unexplained "do overs" before a final decision of the
Commission. We caution that circumstances such as these that will permit the
immediate appeal of an interlocutory administrative decision under 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 appellate reversals of denial
of continuance motions).
CONCLUSION
We vacate the Court of Appeals' order dismissing Hilton's appeal and remand the
matter to the Commission for consideration only of Flakeboard's 102 specific
exceptions to the single commissioner's order raised in the Form 30.
disinterested and duly qualified physician or surgeon to make any necessary
medical examination of any employee and to testify in respect thereto."
4
Section 42-15-80 states, "After an injury and so long as he claims compensation,
the employee, if so requested by his employer or ordered by the commission, shall
submit himself to examination, at reasonable times and places, by a qualified
physician or surgeon designated and paid by the employer or commission."
VACATED AND REMANDED.
Acting Justice James E. Moore, concurs. BEATTY, J.,
concurring in result only. KITTREDGE, J., concurring in a
separate opinion in which HEARN, J., concurs.
JUSTICE KITTREDGE: I concur in result but write separately 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 case is the meaning of the exception 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, procedural, 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 majority correctly finds "that review of the final
agency decision would not provide Hilton with an adequate remedy, and he is
therefore entitled to an immediate 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 based on section 1-23-380 as that
made by Hilton, i.e., that review of a final agency decision would 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 court ruled the employee–respondent suffered a
compensable injury as a matter of law, that review of the Workers' Compensation
Commission's final decision would provide the petitioners with an adequate
remedy).
HEARN, J. concurs.