Tucker v. SC Department of Transportation, 2017-UP-379

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM:
• Docket Number: 2017-UP-379
• Parties: Johnny Tucker, Employee, Appellant, v. SC Department of Transportation, Employer, and State Accident Fund, Carrier, Respondents. Appellate Case No. 2015-002575
• Decision Date: 18 October 2017

Johnny Tucker, Employee, Appellant,
v.
SC Department of Transportation, Employer, and State Accident Fund, Carrier, Respondents.

Appellate Case No. 2015-002575

No. 2017-UP-379

Court of Appeals of South Carolina

October 18, 2017

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted September 1, 2017

Appeal From The Workers' Compensation Commission

Preston F. McDaniel, of McDaniel Law Firm, of Columbia; and Gerald Malloy, of Malloy Law Firm, of Hartsville, for Appellant.

Sarah Sutusky Alphin and John Paul Simkovich, both of Willson Jones Carter & Baxley, P.A., of Columbia, for Respondents.

PER CURIAM:

Johnny Tucker appeals the order of the Appellate Panel of the South Carolina Workers' Compensation Commission (the Appellate Panel) that affirmed the decision of the single commissioner to dismiss his claim with prejudice because his application for a change of condition was not timely filed. On appeal, Tucker argues the Appellate Panel erred in affirming the single commissioner's denial of his application for a change of condition (1) on the basis that his application was not timely filed, (2) when the South Carolina Department of Transportation (SCDOT) and the State Accident Fund (collectively, Respondents) failed to plead untimeliness as an affirmative defense, and (3) when Respondents were estopped from alleging untimeliness under the facts of the case. Additionally, Tucker argues the Workers' Compensation Commission (the Commission) erred as a matter of law by not submitting his motion and petition for rehearing to the Appellate Panel that issued the initial decision and by not making detailed findings of fact and conclusions of law as required by law on all of the essential issues presented to it for decision. Based on this court's decision in Wilson v. Charleston County School District, 419 S.C. 442, 798 S.E.2d 449 (Ct. App. 2017), petition for cert. filed, (S.C. July 24, 2017), we reverse and remand to the single commissioner to consider the merits of Tucker's change of condition application.

This court can modify the Appellate Panel's decision when its "decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689-90...