Levi v. N. Anderson Cnty. Ems, & Berkshire Hathaway Homestate Ins. Co.

• Decision Date: 25 August 2014
• Docket Number: No. 5243.,5243.
• Citation: 762 S.E.2d 44,409 S.C. 374
• Court: South Carolina Court of Appeals
• Parties: Kerry LEVI, Appellant, v. NORTHERN ANDERSON COUNTY EMS, and Berkshire Hathaway Homestate Insurance Company, Respondents. Appellate Case No. 2012–212631.

409 S.C. 374

762 S.E.2d 44

Kerry LEVI, Appellant,

v. NORTHERN ANDERSON COUNTY EMS, and Berkshire Hathaway Homestate Insurance Company, Respondents.Appellate Case No. 2012–212631.

No. 5243.

Court of Appeals of South Carolina.

Heard May 6, 2014.

Decided June 30, 2014.

Rehearing Denied Aug. 25, 2014.

John S. Nichols and Blake Alexander Hewitt, both of Bluestein Nichols Thompson & Delgado, LLC, of Columbia; and Chadwick Dean Pye, of Chadwick D. Pye, LLC, of Spartanburg, for Appellant.

David Hill Keller, of Constangy Brooks & Smith, LLP, of Greenville, for Respondents.

KONDUROS, J.

In this workers' compensation case, Kerry Levi appeals the dismissal of her claim by the Appellate Panel of the Workers' Compensation Commission (Appellate Panel). She contends the single commissioner's denial of Northern Anderson County EMS (EMS) and its carrier's, Berkshire Hathaway Homestate Insurance Company, (collectively, Employer) motion to dismiss was not immediately appealable. Levi also argues the question of whether she settled her third-party claim is not ripe for review. We vacate the Appellate Panel's decision and remand to the Appellate Panel for it to dismiss the appeal.

FACTS/PROCEDURAL HISTORY

Levi worked as a paramedic for EMS. On March 10, 2011, she injured her back while moving a patient. Later that month, on March 29, she was riding in an ambulance as part of her employment when another driver (the third party) rear-ended the ambulance. Levi filed workers' compensation claims for both injuries, which Employer accepted. Levi began receiving temporary disability in May of 2011 and had back surgery in July of that year.

On September 14, 2011, Employer filed a motion to dismiss both claims. It asserted Levi had accepted a $550 check from the third party's insurance company three weeks after the car accident. It contended this was a settlement of her third-party claim.¹ It maintained because she had not notified Employer or the Workers' Compensation Commission (the Commission) of the settlement as provided by section 42–1–560 of the South Carolina Code, she had elected her remedy. It asserted her right to recover workers' compensation benefits was therefore barred.²

Levi contended she had not settled her claim against the third party. She maintained the $550 payment was limited to compensation for her pain and suffering from the accident and she had not signed a document releasing anyone from liability. She contended she had informed Employer of the $550 payment and both the owner of EMS and the worker' compensation insurance adjuster had advised her to accept the money.

On January 20, 2012, the single commissioner denied the motion to dismiss. It found the $550 payment was for pain and suffering and ordered a hearing to determine if Levi had reached maximum medical improvement (MMI) or if she needed additional medical treatment.

Employer appealed to the Appellate Panel, which reversed the single commissioner and dismissed Levi's claims in an order dated July 2, 2012. The Appellate Panel found Levi had settled with the third party and had not notified Employer or the Commission. It determined that therefore Levi had elected her remedy. It found because Levi did not comply with the statute, she had deprived the Commission of jurisdiction of the claim. It also determined her injuries were solely due to the car accident. This appeal followed. ³

LAW/ANALYSIS

Levi argues this court should vacate the Appellate Panel's decision. She maintains the single commissioner's ruling was not immediately appealable because it was not an award but instead a denial of a motion to dismiss. Although she did not raise this to the Appellate Panel, she contends appealability can be raised at any time. We agree.

“Only issues raised [to] and ruled on by the commission are cognizable on appeal.” Stone v. Roadway Express, 367 S.C. 575, 582, 627 S.E.2d 695, 698 (2006). However, “[a]n appellate court may dismiss an appeal or error proceeding on its own motion where it appears from the record that the court is without jurisdiction or that the judgment sought to be reviewed is not final, among numerous other reasons, even though no objection is raised by the opposite party.” Berry v. Zahler, 220 S.C. 86, 89, 66 S.E.2d 459, 460 (1951) (internal quotation marks omitted).

“An appellate court may determine the question of appealability of a decision from a lower court as a matter of law.” Ashenfelder v. City of Georgetown, 389 S.C. 568, 571, 698 S.E.2d 856, 858 (Ct.App.2010) (citing S.C.Code Ann. § 14–3–330 (1976 & Supp.2009) (creating appellate jurisdiction in law cases); S.C.Code Ann. § 14–8–200(a) (Supp.2009) (setting forth the appellate jurisdiction of the court of appeals)). “Even if not raised by the parties, this court may address the issue of appealability ex mero motu.” Id.; see also St. Francis Xavier Hosp. v. Ruscon/Abco, 285 S.C. 584, 586, 330 S.E.2d 548, 549 (Ct.App.1985) (providing this court can raise the issue of appealability ex mero motu even when no party raises any question concerning the appealability of an order).

“The right to appeal is a jurisdictional matter and, even if the parties do not raise the issue of appealability, we must dismiss the appeal on our own motion if we conclude we do not have jurisdiction.” Dorothy J. Pierce Family Mineral Trust v. Jorgenson, 816 N.W.2d 779, 781 (N.D.2012) (internal quotation marks omitted). “[W]hether a matter is appealable is a jurisdictional matter and may be raised by an appellate court even if not noted by the parties.” Barnes v. Barnes, 181 Md.App. 390, 956 A.2d 770, 779 (2008) (internal quotation marks omitted). “Before an order can support an appeal, it must be a final judgment. The issue of whether a judgment is final is jurisdictional, which means that if the reviewing court determines that the judgment appealed from is not final, that court is obligated to dismiss the appeal on its own motion.” Hardy v. State ex rel. Chambers, 541 So.2d 566, 567 (Ala.Civ.App.1989) (citation omitted). “Matters of jurisdiction are of such importance that a court may consider them ex mero motu.” Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala.Civ.App.2005).

South Carolina, as well as other states, has made clear appellate jurisdiction can be raised by appellate courts even if none of the parties have raised it. Other states have found the concept to apply not just to supreme courts and courts of appeal but also when a district court is reviewing a real estate review board's decision. Because appealability can be raised at any point, we can consider whether Employer could immediately appeal to the Appellate Panel the denial of its motion to dismiss.

If an application for review is made to the Commission within fourteen days from the date when notice of the award shall have been given, the Commission shall review the award and, if good grounds be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award.

S.C.Code Ann. § 42–17–50 (Supp.2013) (emphases added). “[T]he intention of the legislaturewas to provide for the disposition of a claim made to the ... Commission by the orderly process of a hearing before a single commissioner ... [and] a review, by the [Appellate Panel], of the single commissioner's award....” Janhrette v. Union Camp Paper Corp., 293 S.C. 59, 60, 358 S.E.2d 704, 705 (1987) (emphasis added) (internal quotation marks omitted).

The commission or any of its members shall hear the parties at issue and their representatives and witnesses and shall determine the dispute in a summary manner. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue, must be filed with the record of the proceedings and a copy of the award must immediately be sent to the parties in dispute.

S.C.Code Ann. § 42–17–40(A) (Supp.2013) (emphasis added).

The Code does not define award. However, Black's Law Dictionary defines it as “[a] final judgment or decision.” Black's Law Dictionary 164 (10th ed.2014).

*381 The applicable regulation provides: “Either party or both may request Commission review of the Hearing Commissioner's decision by filing the original and three copies of a Form 30, Request for Commission Review, with the Commission's Judicial Department within fourteen days of the day the Commissioner's order is received.” S.C.Code Ann. Regs. 67–701(A) (2012) (emphasis added). “Regulations authorized by the legislature have the force of law.” Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995). However, a regulation “may not alter or add to a statute.” Id.

Under section 1–23–380(A) of the [Administrative Procedures Act (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 is entitled to judicial review. An agency decision which does not decide the merits of a contested case is not a final agency decision subject to judicial review. 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.

Bone v. U.S. Food Serv., 404 S.C. 67, 73–74, 744 S.E.2d 552, 556 (2013) (second alteration by court) (ellipses, footnote, citations, and internal quotation marks omitted).

Section 1–23–390 of the APA, governing further appellate review, provides: “An aggrieved party may obtain a review of a final judgment of the circuit court or the court of appeals pursuant to this article by taking an appeal in the manner provided by the South Carolina Appellate Court Rules as in other civil cases.”

Id. at 74, 744 S.E.2d at 556. “[T]he meaning of a ‘final judgment’ as used in section 1–23–390 is not defined by using the exceptions that are present in the general appealability statute, whether or not the statute is specifically referenced.” Id....