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Tucker v. South Carolina Department of Transportation

Supreme Court of South Carolina

July 24, 2019

Johnny Tucker, Employee, Respondent,
v.
South Carolina Department of Transportation, Employer, and State Accident Fund, Carrier, Petitioners. Appellate Case No. 2018-000076

          Heard March 26, 2019

          Appeal from the Workers' Compensation Commission

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

          David Hill Keller and Evelyn A. Norton, Turner Padget Graham & Laney, P.A., of Greenville, for Petitioners.

          Preston F. McDaniel, The McDaniel Law Firm, of Columbia; Gerald Malloy, Malloy Law Firm, of Hartsville, for Respondent.

          FEW JUSTICE.

         In this appeal from the workers' compensation commission, we address the timing requirement in South Carolina Code subsection 42-17-90(A) (2015) for a claim based on a change of condition. We reject Petitioners' argument that satisfying this timing requirement is dependent on a claimant requesting a hearing within the time period set forth in the subsection. Rather, we hold the timing requirement is satisfied upon the filing of a Form 50 to initiate the claim.

         Johnny Tucker injured his shoulder on May 2, 2011, while working at the South Carolina Department of Transportation. The commission found he "sustained 5% permanent partial disability . . . for which he is entitled to fifteen weeks of compensation." On May 2, 2013, Tucker filed a Form 50 asserting a claim for additional benefits on the basis that his condition caused by the 2011 injury had changed. Tucker checked the box on line 13a of the Form 50 indicating, "I am not requesting a hearing at this time." On July 30, 2014, Tucker filed another Form 50. This second Form 50 was identical to the first except this time he checked the box on line 13b indicating, "I am requesting a hearing."

         Petitioners-the Department of Transportation and the State Accident Fund- defended the claim on the basis that Tucker did not comply with the timing requirement of subsection 42-17-90(A). The subsection provides that when a party makes a claim based on a change of condition, "the review must not be made after twelve months from the date of the last payment of compensation pursuant to an award." Tucker received his last payment of compensation on November 28, 2012. The first Form 50 was filed within twelve months, but Tucker's request for a hearing in the second Form 50 did not occur within twelve months.

         Petitioners argued a claimant must request a hearing within twelve months to satisfy the timing requirement. The commission agreed, and denied the claim. The court of appeals did not agree. It held the claim "was timely filed," and reversed in an unpublished decision. Tucker v. S.C. Dep't of Transp., Op. No. 2017-UP-379 (S.C. Ct. App. filed Oct. 18, 2017). Petitioners filed a petition for a writ of certiorari with this Court, again arguing a claimant must request a hearing within twelve months. We granted the petition.

         Subsection 42-17-90(A) is ambiguous in respect to the timing requirement. Its operative language regarding timing is "the review must not be made after twelve months from the date of the last payment of compensation." The term "review" is not defined anywhere in the Workers' Compensation Act, in the commission's regulations, or in our decisions. The ordinary meaning of the term gives us little guidance as to the intent of the Legislature as to what event must occur to meet the timing requirement. In addition, the point in time at which a review becomes "made" is not something that is clear to us. We find, however, there is no basis in the law for Petitioners' proposition that the date a claimant requests a hearing is determinative of whether a claim for change of condition is timely.

         We have addressed this timing requirement before. In Wallace v. Campbell Limestone Co., 198 S.C. 196, 17 S.E.2d 309 (1941), the claimant waited more than three years after his last payment of compensation to file a claim for additional benefits. 198 S.C. at 199, 17 S.E.2d at 310. We held the commission correctly denied the claim on the ground it was filed too late. 198 S.C. at 203, 17 S.E.2d at 312. We later characterized our holding in Wallace as, "We have gone no further than to hold that the application for review must be made within one year after the last payment of compensation." Allen v. Benson Outdoor Advert. Co., 236 S.C. 22, 30, 112 S.E.2d 722, 726 (1960) (citing Wallace).

         In Allen, the claimant did file his application for review within twelve months, "but there was no hearing . . . until . . . twelve days after the expiration of the one year period." 236 S.C. at 29, 112 S.E.2d at 725. The employer and carrier argued "it is not sufficient for the application for review to be made within one year after the last payment of compensation but the application must be heard by the Commission within that period." 236 S.C. at 29-30, 112 S.E.2d at 725. We rejected that position, stating, "It represents a literal and strict construction of [the subsection] when under the well-settled rule a liberal construction is required." 236 S.C. at 30, 112 S.E.2d at 725. After noting, "Similar statutes have been construed in other jurisdictions as only requiring that the application for review be made within the statutory period," 236 S.C. at 30, 112 S.E.2d at 726, we held the commission could hear the claim because "[t]he application for review here [was] filed within one year after the last payment of compensation," 236 S.C. at 31, 112 S.E.2d at 726.[1]

         Petitioners place a strained interpretation on our decision in Allen. The argument seems to be that requesting a hearing is the event we referred to in Allen as the "application for review." We find no support for this argument. In Allen itself, we gave no indication the claimant ever requested a hearing. We stated simply, "Hearings were held . . . ." 236 S.C. at 25, 112 S.E.2d at 723. We now hold a Form 50 is the modern equivalent of what we then referred to as an application.[2] The Form states at the top, "A claim for workers' compensation benefits is made based on the following grounds." It then has various boxes to check and blanks to fill in to provide the essential factual and legal basis for the claim. We do not believe this form can be reasonably construed as anything other than an "application for review" as we used the term in Allen. Therefore, if Allen was not clear before, we now clarify that the ...


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