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Levi v. Northern Anderson County EMS

Court of Appeals of South Carolina

June 30, 2014

Kerry Levi, Appellant,
v.
Northern Anderson County EMS, and Berkshire Hathaway Homestate Insurance Company, Respondents

Heard: May 6, 2014.

Page 45

Appeal From The Workers' Compensation Commission. Appellate Case No. 2012-212631.

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. WILLIAMS and LOCKEMY, JJ., concur. KONDUROS, J.

OPINION

Page 46

[409 S.C. 377] 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 [409 S.C. 378] 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

Page 47

followed.[3]

LAW/ANALYSIS


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