Rose v. JSS Trucking

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Samuel Rose, Claimant, Appellant,

v.

JJS Trucking, Uninsured Employer, and Chris Thompson
Services, Upstream Employer, and Bridgefield Casualty
Ins. Co., Carrier for Chris Thompson Services, and The
State Accident Fund, Respondents.

Appellate Case No. 2016-000497

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2018-UP-155
Submitted March 1, 2018 – Filed April 18, 2018

REVERSED AND REMANDED

Stephen Benjamin Samuels, of Samuels Law Firm, LLC,
of Columbia, for Appellant.

Kirsten Leslie Barr, of Trask & Howell, LLC, of Mount
Pleasant, for Respondents JJS Trucking, Chris Thompson
Services, and Bridgefield Casualty Ins. Co.

Amy V. Cofield, of Cofield Law Firm, of Lexington, for
Respondent State Accident Fund.
PER CURIAM: Samuel Rose appeals an order of the Appellate Panel of the
Workers' Compensation Commission (the Appellate Panel) ruling (1) he was not
entitled to additional benefits under the Workers' Compensation Act (the Act) and
(2) Chris Thompson Services and Bridgefield Casualty Insurance Company
(collectively, Respondents) were entitled to a lien on the proceeds of any third-
party recovery Rose obtained. On appeal, Rose argues (1) the single commissioner
erred by granting Respondents' motion to introduce newly-discovered evidence
while denying his similar motion and (2) the single commissioner and Appellate
Panel erred by barring him from further benefits due to a violation of section 42-1-
560(b) of the South Carolina Code (2015).

After the single commissioner held a hearing to determine whether Respondents
could stop temporary compensation payments and whether Rose was entitled to
further compensation, but prior to entry of a resulting order, Respondents filed a
motion to introduce newly-discovered evidence. In the motion, Respondents
asserted Rose initiated a third-party civil action arising out of the accident that also
gave rise to his workers' compensation claim, but he failed to give timely notice of
the action. See § 42-1-560(b) ("Notice of the commencement of the action shall be
given within thirty days thereafter to the Workers' Compensation Commission, the
employer[,] and carrier upon a form prescribed by the Workers' Compensation
Commission."). Rose filed a similar motion in response, informing the single
commissioner that the third-party action had been voluntarily dismissed and
seeking to introduce the stipulation of dismissal into evidence. The single
commissioner granted Respondents' motion but denied Rose's.

In its order denying Rose's motion, the single commissioner found, "The evidence
sought to be introduced (the Voluntary Dismissal) does not fit the meaning of
'newly[-]discovered evidence' under Regulation 67-707 of the South Carolina Code
as it did not exist at the time of the hearing before the undersigned on August 5,
2013." However, regulation 67-707 does not include such a requirement, and the
single commissioner's finding is contrary to this court's precedent. See S.C. Code
Ann. Regs. 67-707(C) (2012) ("The moving party must establish the new evidence
is of the same nature and character required for granting a new trial and show: (1)
[t]he evidence sought to be introduced is not evidence of a cumulative or
impeaching character but would likely have produced a different result had the
evidence been procurable at the first hearing; and (2) [t]he evidence was not known
to the moving party at the time of the first hearing, by reasonable diligence the new
evidence could not have been secured, and the discovery of the new evidence is
being brought to the attention of the Commission immediately upon its
discovery."); Wise v. Wise, 394 S.C. 591, 602, 716 S.E.2d 117, 123 (Ct. App.
2011) (explaining "[n]othing requires that the facts be in existence at the time of
the first hearing by the single commissioner" to be admitted under regulation
67-707). Accordingly, the denial of Rose's motion was controlled by an error of
law, and we reverse it. See S.C. Code Ann. § 1-23-380(5) (Supp. 2017) (providing
this court may reverse a decision by the Commission "if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are . . . affected by [an] error of law").

Having determined Rose's stipulation of dismissal should have been allowed into
evidence and considered by the single commissioner, we further find the single
commissioner and Appellate Panel erred by concluding Rose's purported violation
of section 42-1-560(b) barred his workers' compensation claim from proceeding.
See Callahan v. Beaufort Cty. Sch. Dist., 375 S.C. 92, 97, 651 S.E.2d 311, 314
(2007) ("A voluntary dismissal leaves the situation as though no suit had ever been
filed."); id. ("Following this rule, [a voluntarily-dismissed] third-party suit . . .
[becomes] a nullity, and [section] 42-1-560 is not applicable. As a result, there is
no violation of [section] 42-1-560 when the third-party suit is treated as never
being filed.").

We reverse the Appellate Panel's order and remand for further proceedings
consistent with this opinion.

REVERSED AND REMANDED.1

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

1
We decide this case without oral argument pursuant to Rule 215, SCACR.