Wise v. Richard Wise D/B/A Wise Serv.

• Decision Date: 22 September 2011
• Docket Number: No. 4879.,4879.
• Citation: 394 S.C. 591,716 S.E.2d 117
• Parties: Stephen Brad WISE, Appellant,v.Richard WISE d/b/a Wise Services and the South Carolina Uninsured Employers Fund, Respondents.
• Court: South Carolina Court of Appeals

394 S.C. 591

716 S.E.2d 117

Stephen Brad WISE, Appellant,

v.Richard WISE d/b/a Wise Services and the South Carolina Uninsured Employers Fund, Respondents.

No. 4879.

Court of Appeals of South Carolina.

Heard Nov. 4, 2010.Decided Aug. 24, 2011.Rehearing Denied Sept. 22, 2011.

Pope D. Johnson, of Columbia, for appellant.John G. Felder, of St. Matthews; Robert Merrell Cook, II, of Batesburg–Leesville, for respondents.KONDUROS, J.

Stephen Brad Wise (Claimant) appeals the circuit court's dismissal of his workers' compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. He maintains the circuit court could not take judicial notice of the existence of his civil action when evidence of that claim did not appear in the appellate record. We affirm.

FACTS/PROCEDURAL HISTORY

This workers' compensation action arose out of an accident Claimant had on October 30, 2000, while working for Richard Wise d/b/a Wise Services (Employer).¹ Claimant was riding on top of a bank building that was being moved when he came into contact with a high voltage electrical line in Orangeburg, South Carolina and sustained severe burns as a result. On June 26, 2001, Claimant filed a Form 50 against Employer for medical and compensation benefits for his injuries. On July 13, 2001, Employer filed a Form 51, denying Claimant was an employee and asserting he was an independent contractor. Additionally, Employer contended it was not covered by the Workers' Compensation Act (the Act) because it does not have the requisite number of employees. Employer also maintained if Claimant was an employee, he was a casual employee and thus exempt under section 42–1–360 of the South Carolina Code. The South Carolina Uninsured Employers' Fund (the Fund) contended Claimant was not subject to the Act. It further asserted that if Claimant was a covered employee, his weekly wage should be figured at the minimum compensation of $75 per week because he failed to file a tax return for his wages from Employer.

On May 2, 2002, the single commissioner held a hearing on the matter. On October 18, 2002, five months after the single commissioner conducted the hearing but prior to its issuing the order, Claimant filed a tort action against Employer and the City of Orangeburg (the City). On November 26, 2003, the single commissioner issued an order denying the claim, finding Employer regularly employed only three employees and thus was exempt from the Act and not required to provide workers' compensation insurance coverage. The single commissioner further found because Employer was exempt from coverage, the Fund had no responsibility to provide benefits to Claimant. Finally, the single commissioner found the Workers' Compensation Commission had no jurisdiction over the claim and dismissed it.

On December 8, 2003, Claimant filed a Form 30 appealing the single commissioner's order to the Appellate Panel. On January 4, 2004, Claimant obtained a default judgment in the amount of $900,000 in the tort action against Employer. Claimant and the City reached a settlement.

On June 22, 2004, the Fund filed a motion to dismiss the appeal or order new evidence taken before the single commissioner. The Fund contended Claimant had waived his right to appeal his claim by filing suit against Employer alleging his employment did not fall within the scope of the Act and prosecuting that action to a final judgment of $900,000. Additionally, the Fund maintained Claimant did not notify it or the Commission of his suit against the City as a third-party tortfeasor, which section 42–1–560(b) of the South Carolina Code requires, and as a result he elected his remedy and was barred from receiving any benefits under the Act. The Fund provided an affidavit, a copy of Claimant's summons and complaint against Employer and the City, the default judgment against Employer, and the order from February 24, 2004, dismissing the action against the City with prejudice. The Appellate Panel dismissed the workers' compensation action, finding (1) Claimant, Employer, or their attorneys did not notify the Commission or the Fund of the civil suit; (2) when Claimant filed his civil action on the same issues that were before the Commission, the matter was removed from the Commission's jurisdiction, and the Claimant alleged his employment did not fall within the parameters of the Act; and (3) accordingly, the matter is res judicata.

Claimant appealed to the circuit court, which reversed the order to dismiss, finding Regulation 67–215(B)(1) of the South Carolina Code of Regulations prohibited the Appellate Panel from addressing a motion to dismiss. The circuit court remanded the action to the Full Commission for it to consider the Fund's motion to submit new evidence. The Full Commission then remanded the matter to the Appellate Panel, which granted the motion to submit additional evidence and remanded the action to the single commissioner to consider the new evidence. Claimant appealed the Appellate Panel's allowance of additional evidence to the circuit court, which reversed the Appellate Panel, finding the Appellate Panel's order was too summary to allow a meaningful review. On remand, the Full Commission issued an order granting the Fund's motion to submit additional evidence, finding the record contains no evidence contrary or similar to the new evidence; thus, the new evidence was not cumulative or impeaching. Accordingly, the Full Commission remanded the action to the single commissioner to determine whether Claimant had elected his remedy.

Claimant again appealed to the circuit court, asserting the evidence did not fit the meaning of newly discovered evidence under Regulation 67–707 of the South Carolina Code. The circuit court reversed, finding the evidence did not constitute newly discovered evidence under Regulation 67–707. The circuit court stated: “The evidence of facts sought to be admitted did not exist at the time of the hearing before the [s]ingle [c]ommissioner.... [T]he evidence sought to be admitted does not constitute after discovered evidence within the meaning of Regulation 67–707.” (quoting State v. Haulcomb, 260 S.C. 260, 270, 195 S.E.2d 601, 606 (1973) (“[A]fter discovered evidence refers to facts existing at time of trial of which ... [the] aggrieved party was excusably ignorant.”)). On remand, the Appellate Panel denied the Fund's motion to admit additional evidence pursuant to Regulation 67–707 and ordered Claimant's appeal as to whether Employer was subject to the Act be set for a hearing. Following the hearing, the Appellate Panel reversed the single commissioner, finding Employer had four employees in his employment, and thus, it was subject to the Act. The Fund appealed to the circuit court, which reversed the Appellate Panel, finding the action was “barred by the election of remedies of the [C]laimant by instituting and settling his tort claims without notice to and the consent of the [E]mployer and the [Fund].” The circuit court also found in the alternative, “pursuant to the election of jurisdiction provision of [s]ection 42–5–40 the Commission was divested of jurisdiction over this claim and its order is vacated.” ² This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel. See Lark v. Bi–Lo, Inc., 276 S.C. 130, 134–35, 276 S.E.2d 304, 306 (1981). 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. Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct.App.2004).

The substantial evidence rule governs the standard of review in workers' compensation decisions. Frame v. Resort Servs. Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct.App.2004). The Appellate Panel's decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct.App.2005). An appellate court can reverse or modify the Appellate Panel's decision only if the 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.” Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct.App.2005) (citations and internal quotation marks omitted).

LAW/ANALYSIS

Claimant argues the circuit court erred in considering the documents relating to the civil action because they were not part of the record. He further contends the circuit court erred in taking judicial notice of the civil action because the Fund never requested the Appellate Panel take notice of it or raise it as a ground on appeal. We disagree.

I. Election of Remedies/Third–Party Action

When an employee's claim arises out of and in the course of his or her employment, the Act provides the exclusive remedy. See Sabb v. S.C. State Univ., 350 S.C. 416, 422, 567 S.E.2d 231, 234 (2002). “Every employer and employee ... shall be presumed to have accepted the provisions of this title respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby.” S.C.Code Ann. § 42–1–310 (Supp.2010).

“When an employee and his or her employer accept the provisions of the Act, the employee's remedies under the Act exclude all other rights and remedies of the employee.” Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 325–26, 523 S.E.2d 766, 772 (1999) (citing S.C.Code Ann. § 42–1–540 (1985)).

THIS SECTION IS KNOWN AS THE EXCLUSIVE REMEDY PROVISION, AND IT shrouds an employer with immunity from any actions at law instituted by the employee. Such immunity is part of the broader quid pro quo arrangement imposed upon the...