Bone v. U.S. Food Serv.

• Citation: 744 S.E.2d 552,404 S.C. 67
• Decision Date: 26 June 2013
• Docket Number: No. 27278.,27278.
• Parties: Cathy C. BONE, Respondent, v. U.S. FOOD SERVICE and Indemnity Insurance Company of North America, Petitioners. Appellate Case No. 2010–171946.
• Court: United States State Supreme Court of South Carolina

404 S.C. 67

744 S.E.2d 552

Cathy C. BONE, Respondent,

v. U.S. FOOD SERVICE and Indemnity Insurance Company of North America, Petitioners.Appellate Case No. 2010–171946.

No. 27278.

Supreme Court of South Carolina.

Heard Nov. 13, 2012.

Decided June 26, 2013.

Carmelo Barone Sammataro and Michael E. Chase, both of Turner, Padget, Graham & Laney, of Columbia, for Petitioners.

John S. Nichols and Blake Alexander Hewitt, both of Bluestein, Nichols, Thompson & Delgado, of Columbia, for Respondent.

Grady Larry Beard and Nicolas Lee Haigler, both of Sowell, Gray, Stepp & Lafitte, of Columbia; and Kirsten.

Leslie Barr, of Trask & Howell, of Mount Pleasant, for Amicus Curiae.

Justice BEATTY.

This is a workers' compensation case concerning the appealability of a circuit court order of remand. The employee, Cathy Bone (“Bone”) filed a claim for an injury she alleged arose out of and in the course of her employment on June 26, 2007. The employer, U.S. Food Service, and its carrier, Indemnity Insurance Co. of North America (collectively, “ Petitioners”), disputed the claim. The single commissioner and an Appellate Panel of the South Carolina Workers' Compensation Commission issued orders denying the claim. Under the procedure then in place, Bone appealed to the circuit court, which concluded the injury was compensable and remanded the matter to the Commission for further proceedings.¹

Petitioners appealed the circuit court's order, and the Court of Appeals dismissed the appeal on the basis the order was not a “final judgment” and thus not immediately appealable because further proceedings were ordered before the administrative agency. Bone v. U.S. Food Service, S.C. Ct.App. Order dated June 30, 2010. This Court granted Petitioners' petition for a writ of certiorari to review the decision of the Court of Appeals, and we affirmed. Bone v. U.S. Food Service, 399 S.C. 566, 733 S.E.2d 200 (2012).

We subsequently granted a petition for rehearing filed by Petitioners, and we additionally granted the following two motions: (1) Bone's motion to argue against precedent, and (2) the motion of the South Carolina Defense Trial Attorneys' Association to accept its Amicus Curiae Brief in support of Petitioners. After considering the record in this matter, as well as the briefs and arguments, we adhere to our original decision to affirm.

I. FACTS

Cathy C. Bone filed a workers' compensation claim form (Form 50) dated August 7, 2007 alleging that she injured her back on Tuesday, June 26, 2007 while employed with U.S. Food Service. Her job consisted of power washing and cleaning the insides of truck trailers that transported food. Bone alleged that she hurt her back when she lifted two pallets inside a trailer to clean underneath them.

According to Bone, she did not report the incident immediately as she needed to continue working and believed she would be okay, but she thereafter developed increasing pain. On her way to work on Tuesday, July 3, 2007, Bone's vehicle developed a flat tire, and she called in to advise her office of this fact. Shortly after she arrived at work on July 3, Bone orally reported to one of her supervisors, Richard Thompson, that she had suffered an injury while working on June 26.

Petitioners (the employer and carrier) denied Bone's claim, disputing that she had injured her back on June 26 and asserting the injury had occurred, instead, when her tire was changed on July 3.

At the hearing in this matter, Bone testified that she did not physically change the tire herself; rather, she had pulled off the road and a gentleman in the parking lot of a nearby business had changed the tire for her. In contrast, Bone's supervisor, Thompson, testified that Bone was crying as she reported her injury on July 3 (which Bone conceded, explaining she was in a lot of pain). In addition, he recalled that Bone had told him that “she had to change her tire on her truck,” which he interpreted to mean that she had personally changed the tire, and Bone never stated anyone had changed it for her. Bone disagreed with this interpretation as well as with the exact wording of her statement to Thompson. The supervisor did not dispute the fact that Bone had reported that her back injury occurred on June 26 as a result of lifting the pallets in the trailer.

The single commissioner found Bone failed to meet her burden of showing that she had sustained an injury by accident arising out of and in the course of her employment. The Appellate Panel of the Commission upheld the single commissioner's findings and conclusions in full.

The circuit court reversed. The circuit court stated, “The Commission denied the claim finding Claimant did not suffer an on the job injury, ostensibly finding Claimant injured her back while changing her tire on July 3. However, a review of the records shows no evidence to support this finding.”

The circuit court noted Petitioners “do[ ] not contest the existence or the degree of [Bone's] injury” and that “[t]he sole issue is when [her] injury occurred.” The circuit court stated Bone gave consistent statements to Petitioners and to physicians that her injury occurred on June 26 and “there is absolutely no evidence in the record, let alone substantial evidence, that Claimant injured her back while changing a tire on the way to work on July 3, 2007.” The circuit court noted Petitioners had argued that the supervisor's testimony that Bone reported having a flat tire on her way to work and having to change it, which the supervisor interpreted to mean she did it herself, together with the single commissioner's finding that Bone was not credible, supported the decision below. However, the circuit court stated the finding regarding credibility “goes only to the weight afforded [Bone's] testimony and in no way establishes [that her] injury occurred on July 3.”

The circuit court concluded:

The evidence of record shows Claimant sustained a compensable injury. There is absolutely no evidence to the contrary. When the evidence is susceptible of only one inference, then [the] question is one of law for the Court. As such, as a matter of law, the Decision and Order of the Workers' Compensation Commission is hereby REVERSED and REMANDED to the Commission for proceedings consistent with this Order.

Petitioners appealed to the Court of Appeals. Bone moved to dismiss the appeal on the ground the circuit court's order was not immediately appealable. The Court of Appeals agreed and dismissed the appeal, finding the order remanding the matter to the Commission for further proceedings did not constitute a “final judgment” and thus was not immediately appealable, citing, inter alia, Montjoy v. Asten–Hill Dryer Fabrics, 316 S.C. 52, 52, 446 S.E.2d 618, 618 (1994) (stating our courts “have consistently held that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable”) and Charlotte–Mecklenburg Hospital Authority v. South Carolina Department of Health & Environmental Control, 387 S.C. 265, 692 S.E.2d 894 (2010) (explaining that the general appealability statute, S.C.Code Ann. § 14–3–330(1) (1976), allowing appeals of intermediate orders “involving the merits,” did not apply to appeals involving administrative agencies, which were governed by a different statutory scheme). Bone v. U.S. Food Service, S.C. Ct.App. Order dated June 30, 2010.

This Court granted Petitioners' petition for a writ of certiorari to review the determination of the Court of Appeals and affirmed. Bone v. U.S. Food Service, 399 S.C. 566, 733 S.E.2d 200 (2012). The Court subsequently granted Petitioners' petition for rehearing as well as Bone's motion to argue against precedent and the motion of the South Carolina Defense Trial Attorneys' Association to accept its Amicus Curiae Brief in support of Petitioners.

II. LAW/ANALYSIS

The Administrative Procedures Act (APA) was enacted in 1977 and “purports to provide uniform procedures before State Boards and Commissions for judicial review after the exhaustion of administrative remedies.” Lark v. Bi–Lo, Inc., 276 S.C. 130, 132, 276 S.E.2d 304, 305 (1981). The APA establishes the standard for judicial review of decisions of the Commission. Pierre v. Seaside Farms, Inc., 386 S.C. 534, 689 S.E.2d 615 (2010); Lark, 276 S.C. at 135, 276 S.E.2d at 306;Eaddy v. Smurfit–Stone Container Corp., 355 S.C. 154, 584 S.E.2d 390 (Ct.App.2003).

Under section 1–23–380(A) of the APA, “[a] party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case ² is entitled to judicial review....” S.C.Code Ann. § 1–23–380(A) (Supp.2007). “An agency decision which does not decide the merits of a contested case ... is not a final agency decision subject to judicial review....” S.C. Baptist Hosp. v. S.C. Dep't of Health & Envt'l Control, 291 S.C. 267, 270, 353 S.E.2d 277, 279 (1987). “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(A).

In this case, the Commission denied Bone's claim in toto, and all parties agree the Commission's order was a final decision subject to initial appellate review in the circuit court because it disposed of the entirety of Bone's claim. However, the order under review by this court is the Court of Appeals's dismissal of the appeal of the circuit court's order that reversed the Commission and remanded the matter. The circuit court found that the Commission erred as a matter of law. Neither the Commission nor the circuit court addressed the severity of Bone's injury, whether or not she had reached MMI, or if she should be provided medical treatment. No award of any kind was made.

It is patently clear that the order from the circuit court remanding the matter to the Commission is not a final order. However, a preliminary,...