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Russell v. Wal-Mart Stores, Inc.

Supreme Court of South Carolina

April 3, 2019

Paula Russell, Claimant, Petitioner,
Wal-Mart Stores, Inc., Employer, and Illinois National Insurance Company, Carrier, Respondents. Appellate Case No. 2018-000354

          Heard February 21, 2019


          Appeal from the Workers' Compensation Commission

          C. Daniel Vega, of Chappell Smith & Arden, P.A., of Columbia, for Petitioner.

          Johnnie W. Baxley III, of Willson Jones Carter & Baxley, of Mount Pleasant, for Respondents.

          JUSTICE FEW.

         An appellate panel of the workers' compensation commission remanded Paula Russell's change of condition claim to a single commissioner for what would be a third ruling on the same claim. Russell appealed the remand order to the court of appeals, which dismissed the appeal on the ground the order was not a final decision, and thus not immediately appealable. We find the remand order is immediately appealable because the commission's unwarranted delay in making a final decision requires immediate review to avoid leaving Russell with no adequate remedy on an appeal from a final decision. We reverse the court of appeals' order dismissing the appeal, reverse the appellate panel's remand order, and remand to any appellate panel of the commission for an immediate and final review of the original commissioner's decision.

         I. Facts and Procedural History

         Russell injured her back in 2009 while working at a Wal-Mart store in Conway. The commission found Russell suffered a 7% permanent partial disability, and awarded her twenty-one weeks of temporary total disability compensation. In 2011, Russell requested review of her award, claiming there had been a "change of condition caused by the original injury" pursuant to subsection 42-17-90(A) of the South Carolina Code (2015).

         A single commissioner conducted a full evidentiary hearing on the 2011 claim on February 11, 2013. In a detailed order dated August 5, 2013, the commissioner found Russell had proven a change of condition. The commissioner ordered Wal-Mart to pay temporary total disability benefits beyond the original twenty-one weeks "through the present date and continuing." The commissioner based the award on Russell's testimony, and the testimony and medical records of two treating physicians. The commissioner explained in her order she relied on testimony of the two physicians who described a "physical, anatomical change" and an "increase in the size of the disc protrusion," demonstrated by an "objective" comparison of MRI images taken before and after the award.

         An appellate panel reversed the commissioner. The panel dismissed Russell's testimony on the ground "it is conclusory and self-serving." The panel discounted the testimony and medical records of the two physicians, stating, "Both [physicians] ultimately testified there was no objective or significant radiographical difference to be noted in the MRI scans done before and after the original award." In an order dated January 30, 2014, the panel found Russell "failed to prove by a preponderance of the evidence . . . [she] has sustained a change of condition."

         Russell appealed to the court of appeals. The court of appeals found the appellate panel "erred in requiring a change of condition to be established by objective evidence." Russell v. Wal-Mart Stores, Inc., 415 S.C. 395, 398, 782 S.E.2d 753, 755 (Ct. App. 2016). The court of appeals reversed the panel and remanded "to the Commission," 415 S.C. at 401, 782 S.E.2d at 757, with no express remand instructions.

         The court of appeals remitted the case to the commission on May 3, 2016. On March 20, 2017, a second commissioner filed a detailed order finding Russell "met her burden of proving a change of condition." On September 15, 2017, however, a new appellate panel vacated the second commissioner's order and remanded for what would be a third commissioner to make a third ruling. The panel stated, "At the remand hearing, the Single Commissioner shall conduct a full evidentiary hearing and allow both parties to submit testimony, medical records, and other additional evidence for consideration as to the issue of any award of benefits under the Act if the change of condition is found to be compensable."

         Russell appealed the September 15, 2017 order to the court of appeals. In an unpublished decision, the court of appeals found the appellate panel's remand order was not immediately appealable and dismissed the appeal. Russell filed a petition for a writ of certiorari with this Court. She argued the commission's repeated remands for new hearings created a "perpetual"[1] "cycle of orders and appeals such ...

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