Tucker v. S.C. Dep't of Transp.
Tucker v. S.C. Dep't of Transp.
Opinion
**300 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.
*427
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
**301
unpublished decision.
Tucker v. S.C. Dep't of Transp.
, Op. No. 2017-UP-379,
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.
,
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."
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 ...."
*428 The **303 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 filing of a Form 50 to initiate a claim for a change of condition is the event that must occur within twelve months of the last payment of compensation to meet the timing requirement of subsection 42-17-90(A).
The fact a claimant does not request a hearing does not mean the claim will sit unattended. In
Russell v. Wal-Mart Stores, Inc.
,
At oral argument, we discussed with counsel the possibility a claimant may file a Form 50 within twelve months, and then intentionally delay a hearing in the hope that evidence will later develop to support a change of condition claim. In the case before us, there is no indication whatsoever Tucker or his counsel attempted to do this. Such an improper effort, 4 as we have explained, should have no chance of success. However, if an employer suspects this, and the commission does nothing to move the claim toward resolution, the employer may request a hearing or in some other fashion seek to protect its interests.
*429 We affirm the court of appeals' decision finding the claim "timely." We remand to the commission to promptly conduct a hearing on the merits of Tucker's claim for a change of condition.
AFFIRMED.
BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.
In
Allen
, we held the commission had "jurisdiction" to hear the claim,
Form 50 did not exist when we decided Allen in 1960. There were other industrial commission forms at least as early as 1947, but there was no separate form for filing a claim. The available forms included Form 11, entitled "Notice of Accident to His Employer," and Form 25, entitled "Request that Claim be Assigned for Hearing." Form 50 appears to have been created in 1968. At that time, Form 50 was entitled "Application of Employee for Benefits and Request for Hearing." Until 1990, the Form 50 was called an "Application," and the filing of it was an automatic request for a hearing. Ernest B. Castles, The South Carolina Workmen's Compensation Act Annotated (Castles ed., 1947), later revised as The South Carolina Workmen's Compensation Law (S.C. Indus. Comm'n ed., 1950, 1956, 1959, 1970, and 1974).
The workers' compensation commission adopted regulations in 1990.
In common practice, therefore, to file a timely claim, attorneys have done precisely what Tucker did in this case. There is no indication there was ever a practice or procedure under which the request for a hearing was given any significance in meeting timing deadlines. While the discussion in Beard, supra , relates to the filing of an initial claim to meet the two-year statute of limitations in section 42-15-40 of the South Carolina Code (2015), we see no reason to believe the same practice was not observed in filing a claim for a change of condition. Therefore, Petitioners' contention that we meant in Allen to require the request of a hearing to meet the timing requirement of subsection 42-17-90(A) is unsupported in law and the history of practice in this area.
We recognize that our decisions in Russell and this case will change the practice of allowing claims to sit until a hearing is requested, and will require the commission to consider amending certain regulations, including 67-207.
See Rule 3.1, RPC, Rule 407, SCACR ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ....").
Reference
- Full Case Name
- Johnny TUCKER, Employee, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Employer, and State Accident Fund, Carrier, Petitioners.
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 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 hold the timing requirement is satisfied upon the filing of a Form 50 to initiate the claim.