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Justices blast workers' comp commission for delays.

Byline: Matt Chaney

After years of litigation over whether a woman is entitled to an extension of workers' compensation benefits, the South Carolina Supreme Court has ruled that the state's Workers' Compensation Commission unreasonably caused delays and has ordered an appellate panel to make a final decision on the matter.

Justice John Few, writing for a unanimous court, ruled that the South Carolina Court of Appeals erred in dismissing an appeal because the commission's "unwarranted delay" in making a final decision requires swift review to prevent leaving both sides without remedy.

Paula Russell originally requested a review in 2011 of an award for partial disability she received as a result of a back injury she suffered while working at a Wal-Mart in Conway.

A single commissioner had conducted a full hearing and found Russell had proven a change of condition requiring Wal-Mart to pay temporary total disability benefits beyond the original 21-week order, but an appellate panel reversed that order. Russell petitioned the Court of Appeals, which found that the panel had "erred in requiring a change of condition to be established by objective evidence."

The case then went back to the appellate panel without specific instructions, and was remitted to a second individual commissioner, who also found that Russell had met her burden of proving a change of condition. This order was again reversed by an appellate panel and remanded for what would have been a third single commissioner ruling. Russell appealed again, the Court of Appeals dismissed her appeal, and the Supreme Court agreed to hear the petition.

On appeal, Russell argued that the commission's repeated remands for new hearings created a perpetual "cycle of orders and appeals such that [she] will be deprived of an adequate remedy."

Few wrote in the court's opinion that South Carolina law allows an appellate panel to review and amend an individual commissioner's award, and that "in all but rare cases, the appellate panel should proceed promptly to make a final decision without the necessity of any remand."

"In this case, however, the commission's unnecessary delays and repeated remands over the almost eight years since Russell filed her change of condition claim frustrated the goals of the Workers' Compensation Act," Few said. "[Each] of the remands was unnecessaryparticularly the remand order on appealand thus contributed to the commission's failure to make a final decision in a timely manner."

Few said that the appellate panel should have made a ruling on the case after the Court of Appeals ruled that it had erred in requiring objective evidence to support Russell's claim. While the Court of Appeals did not provide specific instructions, Few wrote that the panel should have inferred that the error was in its own review of the first commissioner's order, "not in the work of the commissioner."

"It was completely unnecessary, therefore, for the commission to require the case be reheard by a second commissioner," Few said. The second remand, to a third commissioner, was also unnecessary, Few said, citing an email from Wal-Mart's counsel which asked that a new hearing not be held after the second remand.

"Any new factual findings coming from a single commissioner will simply necessitate more appeals and more litigation," Few said, citing the attorney. "I certainly don't see any basis for a de novo hearing or consideration of new evidence."

Despite these factors, the appellate panel still remanded the case for a third hearing.

"The commission failed to fulfill its responsibility under the Workers' Compensation Act to promptly decide this case without protracted litigation," Few said.

Daniel Vega of Chappell Smith & Arden in Columbia represented Russell on appeal. He did not immediately respond to requests for comment.

Johnnie Baxley III of Willson Jones Carter & Baxley in Mount Pleasant represented Wal-Mart on appeal. He said that the court's decision was a procedural one, and that once the panel issues a decision, he expects the losing party to appeal based on the substance of the case.

He also said that it is unclear how the decision will impact how the commission handles remands in the future.

"I understand where the court is coming from," Baxley said. "Eight years on a workers' compensation case is too long, but most of the time has been spent with the case pending on appeal, and the appellate process takes a while."

Gary Cannon, the executive director of the South Carolina's Workers' Compensation Commission, also did not immediately respond to requests for comment on the opinion.

The eight-page decision is Russell v. Wal-Mart Inc. (Lawyers Weekly No. 010-019-19.) The full text of the opinion is available online at

Follow Matt Chaney on Twitter @SCLWChaney

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Author:Chaney, Matt
Publication:South Carolina Lawyers Weekly
Date:Apr 9, 2019
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