Submitted March 7, 2018
WRIT OF CERTIORARI TO THE COURT OF APPEALS
from The Workers' Compensation Commission
Gabriel Coggiola, of Willson, Jones, Carter & Baxley,
P.A., of Columbia, for Petitioners.
Stephen J. Wukela, of Wukela Law Firm, of Florence, for
seek a writ of certiorari to review the court of appeals'
decision in Nero v. South Carolina Department of
Transportation, 420 S.C. 523, 804 S.E.2d 269 (Ct. App.
2017). We grant the petition, dispense with further briefing,
reverse, and remand the case to the court of appeals to issue
a ruling applying the substantial evidence standard of
filed a workers' compensation claim alleging he sustained
injuries to his back and shoulder while on the job. The
single commissioner found respondent suffered an injury by
accident arising out of and in the course of respondent's
employment, and awarded benefits. The appellate panel
reversed the decision of the single commissioner, finding
respondent failed to provide timely notice of the injury.
See S.C. Code Ann. § 42-15-20 (2015) (setting
forth the requirement of timely notice).
appeal from the commission's decision, the court of
appeals employed the de novo standard of review applicable to
jurisdictional questions, 420 S.C. at 529, 804 S.E.2d at 272,
and reversed the commission, 420 S.C. at 535, 804 S.E.2d at
276. In finding the question of timely notice was a
jurisdictional question subject to de novo review, the court
of appeals relied on Shatto v. McLeod Regional Medical
Center, 406 S.C. 470, 753 S.E.2d 416 (2013) and
Mintz v. Fiske-Carter Construction Co., 218 S.C.
409, 63 S.E.2d 50 (1951). However, neither Shatto
nor Mintz supports the court of appeals' use of
the de novo standard. Shatto involved "the
question of whether [the claimant] was . . . an employee . .
. or an independent contractor, " and thus is
inapplicable to this case. 406 S.C. at 475, 753 S.E.2d at
419. Mintz did involve what we called "the
jurisdictional defense of no timely notice, " 218 S.C.
at 413, 63 S.E.2d at 52, but in that case we did not review a
finding of the commission. Rather, after the commission
neglected to rule on the question, we made our own finding of
fact. 218 S.C. at 415, 63 S.E.2d at 52-53. Our casual use of
the word "jurisdictional" was not necessary to our
decision, and thus dictum.
this case, the court of appeals has consistently applied the
substantial evidence standard when reviewing decisions of the
commission on the question of timely notice. See,
e.g., King v. Int'l Knife &
Saw-Florence, 395 S.C. 437, 443, 718 S.E.2d 227, 230
(Ct. App. 2011) ("The Appellate Panel's findings
concerning notice are subject to the substantial evidence
standard."); Murphy v. Owens Corning, 393 S.C.
77, 82, 710 S.E.2d 454, 457 (Ct. App. 2011) ("The
Commission's findings of fact regarding notice and the
statute of limitations are reviewed under the substantial
evidence standard of review."); Watt v. Piedmont
Auto., 384 S.C. 203, 212, 681 S.E.2d 615, 620 (Ct. App.
2009) (holding the commission's ruling that a claimant
failed to provide the required notice was supported by
substantial evidence); Lizee v. S.C. Dept. of Mental
Health, 367 S.C. 122, 127, 623 S.E.2d 860, 863 (Ct. App.
2005) (holding substantial evidence did not support the
commission's finding that a claimant provided timely
notice); Bass v. Isochem, 365 S.C. 454, 461, 617
S.E.2d 369, 372 (Ct. App. 2005) (holding substantial evidence
did not support the commission's decision to deny
benefits because claimant failed to give timely notice);
Etheredge v. Monsanto Co., 349 S.C. 451, 459, 562
S.E.2d 679, 683 (Ct. App. 2002) (holding the commission's
findings regarding notice were supported by substantial
evidence); Muir v. C.R. Bard, 336 S.C. 266, 300, 519
S.E.2d 583, 601 (Ct. App. 1999) (holding substantial evidence
supported the commission's finding that a claimant gave
timely notice of his claim); Hanks v. Blair Mills,
Inc., 286 S.C. 378, 382, 335 S.E.2d 91, 93 (Ct. App.
1985) (substantial evidence supported the finding that
employer was notified of worker's job-related injury
within ninety days).
Hartzell v. Palmetto Collision, LLC, 406 S.C. 233,
750 S.E.2d 97 (Ct. App. 2013), rev'd, 415 S.C.
617, 785 S.E.2d 194 (2016), the employer raised the
jurisdictional question of whether "it regularly
employed four or more employees." 406 S.C. at 241, 750
S.E.2d at 101. The court of appeals reviewed the
commission's decision on this question de novo, stating
"'an appellate court reviews jurisdictional issues
by making its own findings of fact without regard to the
findings and conclusions of the Appellate Panel.'"
Id. (quoting Hernandez-Zuniga v. Tickle,
374 S.C. 235, 244, 647 S.E.2d 691, 695 (Ct. App. 2007)). The
employer also raised the question of timely notice. 406 S.C.
at 246, 750 S.E.2d at 103-04. The court of appeals reviewed
the commission's decision on the notice question,
however, using the substantial evidence standard. 406 S.C. at
246, 750 S.E.2d at 104. The court of appeals stated, "We
find the Appellate Panel's determination that Claimant
provided Employer with adequate notice he had suffered a
work-related injury is not supported by substantial evidence
in the record . . . ." 406 S.C. at 247, 750 S.E.2d at
104. We reversed the court of appeals, also applying the
substantial evidence standard of review to the question of
timely notice, stating,
While reasonable minds could have reached a different
conclusion based on the record, we must not engage in
fact-finding that would disregard the Commission's
factual findings on these issues. . . . We find the
Commission's findings are supported by substantial
Hartzell v. Palmetto Collision, LLC, 415 S.C. 617,
623, 785 S.E.2d 194, 197 (2016).
the court of appeals erred in applying the de novo standard.
Under well-settled law, the commission's determination of
whether a claimant gave timely notice under section 42-15-20
is not a jurisdictional determination, and must be reviewed
on appeal under the substantial evidence standard. We ...