Adams v. Westinghouse SRS

• Decision Date: 10 August 2009
• Docket Number: 2009-UP-401
• Parties: Mary W. Adams, Appellant, v. Westinghouse SRS and Wausau Insurance Companies, Respondents.
• Court: South Carolina Court of Appeals

Mary W. Adams, Appellant, v. Westinghouse SRS and Wausau Insurance Companies, Respondents.

No. 2009-UP-401

Court of Appeals of South Carolina

August 10, 2009

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Heard May 13, 2009

Appeal From Aiken County Diane Schafer Goodstein, Circuit Court Judge

Amy G Steinmeyer, of Columbia, and Michael Tanner, of Bamberg, for Appellant.

Matthew Cook, of Columbia, for Respondents.

GEATHERS, J.

In this workers' compensation case, Appellant Mary Adams seeks review of the circuit court's conclusion that her claim filed over twenty-three years after her injury, was barred by the statute of limitations, SC Code Ann. § 42-15-40 (Supp. 2008). Adams argues that Respondents Westinghouse SRS and Wausau Insurance Companies waived their right to assert any affirmative defenses to her claim, including the statute of limitations, because they failed to timely respond to her claim. Despite the obvious disadvantages of allowing this extraordinarily stale claim to proceed forward, we reach the inescapable conclusion that Respondents' statute of limitations defense is procedurally barred. Therefore, we must reverse the circuit court's order and remand the matter to the Commission.

FACTS/PROCEDURAL HISTORY

On July 7, 1977, Adams injured her neck and back when she was pinned in a machine while working for Westinghouse SRS. Her first attempt to notify the Workers' Compensation Commission of a claim was when she filed a Form 50 on December 14, 2000 over twenty-three years after her injury. Other than a failed attempt to retain an attorney in April 2002, there is nothing in the record to show the subsequent history of this filing. On August 23, 2004, Adams filed a second Form 50.

On September 3, 2004, the Commission mailed the Form 50 to Wausau at its Maitland, Florida office. Respondents filed their Form 51 Answer to Adams' claim on October 12, 2004. They asserted numerous defenses, including the statute of limitations and the doctrine of laches. The single commissioner conducted a hearing on the claim on January 20, 2005, and filed an order denying the claim on March 15, 2005. The single commissioner concluded that Adams' claim was barred under section 42-15-40 because she did not timely file her claim. ^[1] The single commissioner also concluded that Adams' claim was barred by the doctrine of laches.

The Appellate Panel reversed the single commissioner's order on the ground that Respondents failed to file their Form 51 within the thirty-day deadline set forth in 25A S.C. Code Ann. Regs. 67-603.B(1) (Supp. 2008). Regulation 67-603.B(1) requires the employer's attorney to file the Form 51 with the Commission's Judicial Department within thirty days of service of the Form 50. The Commission concluded that because Respondents failed to timely file their response to Adams' claim, they waived their affirmative defenses pursuant to 25A S.C. Code Ann. Regs. 67-603.C (Supp. 2008). ^[2] The Commission also concluded that even if Respondents did not forfeit their right to raise the defense of laches, they did not provide any admissible evidence of any of the elements of laches, such as prejudice.

The circuit court reversed the Appellate Panel's order and reinstated the single commissioner's order. The circuit court concluded that Respondents' Form 51 was not due for filing until October 12, 2004, the same day Respondents filed their Form 51. The circuit court explained that Respondents could take advantage of Rule 6(e), SCRCP, which allows an addition of five days to a response deadline when a party has been served with a notice or paper by mail. ^[3] The circuit court calculated the due date for the Form 51 by tacking on an additional five days at the end of the thirty-day period and by further extending the period to account for weekend days both before and after adding the five days. The circuit court stated,

A letter was sent out dated September 3, 2004 that achieved proper service. Under 67-209 [sic], the [thirty-day] period in which the respondent must respond would then commence on the next day, September 4, 2004. See S.C. Code Regs. 67-209(A) (2006). When counting these days, '[t]he day of the event, after which a designated period of time begins, is excluded.' Id. Therefore, an answer was due by the end of a [thirty-day] period that began to run on September 4. This period expired on October 3, which in 2004 fell on a Sunday. When determining the length of an answer term, weekend days and holidays are included' unless the designated time period ends on a Saturday, Sunday, State or Federal holiday.' S.C. Code Regs. 67-209(B) (emphasis added). In those types of cases, the final day the answer is due is 'the next day that is not a Saturday, Sunday, State or Federal holiday.' Id. In 2004, the next non-weekend or non-holiday date to follow October 3 would have been Monday October 4, 2004. Under 67-209 [sic], the [thirty-day] period extended to that date. The period would then extend again under Rule 6 of the South Carolina Rules of Procedure.

...

South Carolina rule of Civil Procedure 6(e) allows a 'grace period' of five days beyond the normal due date of any action in response to something served via U.S. Mail[.]

...

In the present case, after applying South Carolina Code of Regulations 67-209, the [thirty-day] term available for an answer ended on October 4, 2004. Because the service required an answer, however, an additional five (5) days can be added beyond this date. That places the expiration on the ninth day of October, which in 2004 fell on a Saturday.

With the new expiration date of October 9, 2004 occurring on a weekend, Section 67-209(B) again applies to extend the due date to Tuesday, October 12. In 2004 October 10 fell on a Sunday and October 11 was a federal holiday-Columbus Day. Therefore, the expiration date had to extend to the first non-weekend or non-holiday date: October 12, 2004.

(emphasis added).

The circuit court concluded that Respondents timely filed their Form 51 and that they did not waive their affirmative defenses. The circuit court declined to rule on the issue of laches but concluded that Adams' claim was barred by the statute of limitations. This appeal followed.

ISSUES ON APPEAL

1.

Did the circuit court err in concluding that Respondents timely filed their Form 51 because Rule 6(e), SCRCP, allowed them a five-day grace period?

2.

Did the circuit court err in concluding that Respondents did not waive their affirmative defenses?

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act establishes the standard for judicial review of decisions by the Appellate Panel of the Workers' Compensation Commission. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). Specifically, section 1-23-380 of the South Carolina Code (Supp. 2008) provides that this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse when the decision is affected by an error of law. See Hamilton v. Bob Bennett Ford, 336 S.C. 72, 76, 518 S.E.2d 599, 600-01 (Ct. App. 1999) (interpreting section 1-23-380), modified on other grounds, 339 S.C. 68, 528 S.E.2d 667 (2000). Section 1-23-380 allows reversal of a factual finding of the Appellate Panel only if it is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."

In reviewing workers' compensation decisions, we ascertain the propriety of the circuit court's determination as to whether the Appellate Panel's findings of fact are supported by substantial evidence in the record and whether the Panel's decision is affected by an error of law. Baxter v. Martin Bros., Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006).

LAW/ANALYSIS

I. Timeliness of Response to Claim

Adams assigns error to the circuit court's conclusion that Respondents timely filed their Form 51 due to the additional five days allowed by Rule 6(e), SCRCP. ^[4] Adams argues that Rule 6(e) does not apply to procedures under the Workers' Compensation Law. ^[5] We agree.

Regulation 67-603.B(1) of the South Carolina Code (Supp. 2008) requires the employer's attorney to file the Form 51 with the Commission's Judicial Department within thirty days of service of the employee's Form 50. Additionally, like Rule 6(a) of the South Carolina Rules of Civil Procedure, Regulation 67-209 of the South Carolina Code (1990) sets forth requirements for the computation of time in determining filing or service deadlines. It provides:

A. The day of the event, after which a designated period of time begins, is excluded. The last day, of the designated time period, is included.

B. Saturdays, Sundays, State, and Federal holidays are included unless the designated time period ends on a Saturday, Sunday, State, or Federal holiday in which case the next day that is not a Saturday, Sunday, State, or Federal holiday is included as the last day.

Regulation 67-209 does not allow additional days to respond when a party has been served by mail. Further, the only other workers' compensation regulation that allows an additional five days applies only in the instance when the Commission has served a party with an order using first class mail. Regulation 67-213.A of the South Carolina Code (Supp. 2008) provides as follows:

A. The Commission serves orders by certified mail, return receipt requested or by deposit in the United States Postal Service, first class postage, addressed to the parties according to R.67-210.

...

(2) When service is made by certified mail, the date of service is the date of the addressee's receipt indicated by the certified mail return

...