Boone's Masonry Const. Co., Inc. v. South Carolina Second Injury Fund, 20269

• Decision Date: 10 August 1976
• Docket Number: No. 20269,20269
• Citation: 227 S.E.2d 659,267 S.C. 277
• Parties: BOONE'S MASONRY CONSTRUCTION CO., INC., and Allstate Insurance Company, Respondents, v. SOUTH CAROLINA SECOND INJURY FUND, Appellant.
• Court: South Carolina Supreme Court

Page 659

227 S.E.2d 659

267 S.C. 277

BOONE'S MASONRY CONSTRUCTION CO., INC., and Allstate Insurance Company, Respondents, v. SOUTH CAROLINA SECOND INJURY FUND, Appellant.

No. 20269.

Supreme Court of South Carolina.

Aug. 10, 1976.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Richard B. Kale, Jr., Columbia, for appellant.

Vernon E. Sumwalt, of Roddey, Sumwalt & Carpenter, Rock Hill, for respondents.

LEWIS, Chief Justice:

This appeal involves the liability of the South Carolina Second Injury Fund for reimbursement to the employer and carrier for benefits paid to an injured employee under the Workmen's Compensation Act.

Orell Mobley was employed by respondent, Boone's Masonry Construction Company, Inc., in September or October 1970. Respondent, Allstate Insurance Company, was the carrier for the employer.

The employee, Mobley, had a permanent physical impairment to his left leg and his back at the time of his employment by respondent Boone. His disability resulted from two prior industrial accidents. The first injury occurred in 1962, while he was working in North Carolina, and resulted in the payment of Workmen's Compensation benefits under the North Carolina law for a permanent partial disability of ten (10%) per cent to his back. The second injury was received in 1964 in an accident in South Carolina, resulting in the award of Workmen's Compensation benefits under the South Carolina law for a 65% Permanent impairment to his left leg. The last injury left the employee crippled, and the injury to the back necessitated rest periods while at work. Respondent Boone employed him with knowledge that he was crippled and learned of his back trouble within a month after employment.

On December 31, 1973, about three (3) years after his employment, the employee was injured in an accident while working for respondent Boone. Liability was admitted by respondents and a compromise settlement of the employee's claim for Workmen's Compensation benefits was entered into on or about March 14, 1975.

After the settlement of the employee's claim, respondents instituted this proceeding before the Industrial Commission, pursuant to Code Supplement Section 72--601, et seq., for reimbursement from the appellant, South Carolina Second Injury Fund, for a portion of the benefits paid to the employee. Appellant denied the claim upon the ground that the respondent employer failed to produce written records establishing his knowledge of the employee's prior permanent physical impairment as required by the following provisions of Section 72--601(c) of the Supplement to the 1962 Code of Laws:

In order to qualify under this section for reimbursement from the Second Injury Fund, the employer must establish by written records which shall be filed with the Commission and the fund, when claim is made for reimbursement thereunder, that the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the employee was retained in employment after the employer acquired such knowledge.

After a hearing, the Industrial Commission upheld the claim of respondents, finding that (1) the employer had actual knowledge of the prior permanent physical impairment of the employee; and (2) the records of the prior decisions of the two Industrial Commissions, as to the prior permanent disability of the employee, satisfied the statutory requirement that a written record be filed showing knowledge on the part of the employer.

Upon appeal to the circuit court, the award of the Industrial Commission was affirmed by the trial judge solely upon the ground that the quoted provisions from Section 72--601(c) were prospective in application and, therefore, the written records requirement of that section was inapplicable to the present employee who was employed prior to the effective date of that statute. The decision of the lower court was based upon its interpretation of the following provisions of Section 3 of the Act, which enacted Section 72--601 et seq. (Act 1390 of the Acts of 1972, 57 Stat. 2578, 2582):

'This act shall take effect on July 1, 1972, and will apply only to second injuries...